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Employment and immigration rules after a no-deal Brexit

There is little clarity around what the employment landscape for foreign talent will look like if a deal isn't reached

On 23 August 2018 the government published the first batch of some 25 planned notices addressing the consequences of a no-deal Brexit (which the government still maintains is highly unlikely). These covered a variety of topics including workers’ rights, trading with the European Union (EU), and banking, insurance and other financial services.

The government indicated in this guidance, as it had previously confirmed, that existing domestic employment law protections will be maintained even if they derive from EU law requirements. One exception is that it will no longer be possible for requests to be made in the UK for an employer to set up a European Works Council (EWC) and the UK’s departure from the EU may affect existing EWC arrangements. Also, the rights of employees working for a UK-based employer in an EU country in relation to insolvency of the employer may be affected by the UK’s departure from the EU, as they may not always be protected under the insolvency regime established in that EU country.

What is not yet available is any clarity about how the UK’s immigration rules would operate in a no-deal Brexit scenario. The recently-issued guidance only addresses the ability of EU citizens already living in the UK to apply for 'settled status' after the end of June 2021. The final details of this scheme remain to be published and will, in any event, be subject to parliamentary approval. Settled status will enable individuals to continue to live and work in the UK and be eligible for healthcare, schools, public funds, pensions and, subject to the relevant requirements, British citizenship.

Settled status will be open to those who are EU citizens, or family members of EU citizens, that have been living in the UK continuously for five years and have started living in the UK by 31 December 2020. Those who do not satisfy the continuous residence condition will be able to apply for 'pre-settled status', which will entitle the individual to live and work in the UK for a further five years and have access to public funds and services on the same basis as they do currently.

The scheme will open fully by March 2019 and the deadline for applying will be 30 June 2021. Irish citizens and those with indefinite leave to remain will not need to apply for settled status. The position in respect of citizens of Norway, Iceland, Liechtenstein and Switzerland is yet to be finalised.

The position as to the wider immigration regime, with or without a withdrawal deal, remains unclear. The Brexit whitepaper published in July reiterated the government’s intention to end free movement and introduce a new immigration system which, in addition to arrangements for students and travel, would enable employers to move their 'talented people'. The Home Office had originally planned to publish a whitepaper confirming its plans for post-Brexit immigration from the EU last year, but this has been repeatedly delayed. This is now expected in September 2018.

Employers will simply have to continue to watch this space to see what immigration arrangements will be put in place after Brexit.

Charles Wynn-Evans is head of Dechert's London employment practice, and Jennifer Hill is an associate at Dechert