Following recent events in Parliament, the Prime Minister has been instructed by the House of Commons to return to the EU to try to renegotiate aspects of the Withdrawal Agreement.
With the EU suggesting that the Agreement is not up for renegotiation, the prospect of the UK leaving the EU without a deal remains a very real possibility. So what would 'no deal' mean for EEA nationals who are already in the UK and those who plan to take up residence here in the coming months?
What would 'No Deal' mean for EEA Nationals already resident in the UK?
Even if the UK leaves the EU without a deal the government has stated that the EU Settlement Scheme will continue to operate, granting status to those EEA nationals and their family members who are resident in the UK by 29 March 2019. The Scheme will remain open until 31 December 2020 in order to give EEA nationals resident by 29 March 2019, time to submit applications.
As would be the case under the Withdrawal Agreement, EU nationals who are granted status under the EU Settlement Scheme will still be able to work, study and access benefits as they can under current EU free movement rules.
Will EEA Nationals who are already resident in the UK but travelling after Brexit need to prove their residence here in order to be granted entry?
The government has said that even in the event of a no deal, the same entry requirements that currently apply to EEA nationals will continue to apply until the end of 2020, irrespective of whether they were resident in the UK before Brexit. This means that EEA nationals will continue to be able to enter the UK in the same way that they do now, and should not be subject to detailed scrutiny about their intentions while in the UK.
What happens to EEA Nationals who arrive after 29 March 2019?
On 28 January 2019, the government published new proposals which they intend to take effect in the event of a no-deal Brexit. Under the proposals, all EEA nationals who enter the UK after 29 March 2019 will be permitted to stay for 3 months without any restrictions on their ability to work or study. If EEA nationals whose residence in the UK commenced after 29 March 2019 wish to stay longer than 3 months, then they will need to apply for a new immigration status: European Temporary Leave to Remain. Those who stay longer than 3 months but do not apply will be committing an offence.
The new status will be valid for 3 years and will allow those EEA nationals to continue living and working or studying here. However, that status will not be extendable and will not lead to indefinite leave to remain in the UK. EEA nationals who are granted European Temporary Leave to Remain and wish to stay in the UK for longer than 3 years will need to apply under the Immigration Rules in force at that time.
What does this mean for employers?
The government has said that changes will not be made to documents employers are required to check to demonstrate that their employees have the Right to Work in the UK until the end of 2020. However, employers will need to be mindful that their EEA national employees in the UK will need to apply either under the EU Settlement Scheme or - if they do not qualify under that Scheme - for European Temporary Leave to Remain.
If there is a possibility that a new hire who is relocating from the EU can take up their role - or even simply start living in the UK - before 29 March then this would certainly be worth considering so that those employees can be brought within the remit of the EU Settlement Scheme.
Very little detail has been released so far about the new temporary status and how it will work in practice. Questions have also been raised about the extent to which employers may be liable under the civil penalty regime, or even criminally, if they employ an EEA national who they know started living in the UK after 29 March 2019 and has failed to apply for temporary leave to remain when they should have done.