Immigration: January Developments

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Immigration: January Developments

Published 8 February 2019

The facts

Brexit: settled status fee abolished and the Government’s proposed immigration system if there is a “no deal” Brexit

The Prime Minister announced on 21 January 2019 that the £65 fee (£32.50 for children) for EU citizens applying for settled status under the EU Settlement Scheme will be abolished.

The EU Settlement Scheme will be fully open by 30 March 2019. However the test phase of the scheme is now open, meaning that many EU citizens are already eligible to apply (as the test phase is open to any EU citizen with a valid passport). This follows a testing phase of the scheme which saw over 30,000 fee paying settled status applications. Those who choose to apply between now and the scheme fully opening on 30 March 2019 will still need to pay the fee. Those who have paid the fee will then have to be refunded, although we await further details on how this will be processed. The decision to revoke the fee means that the Government will have to meet the cost of the scheme, which is set to go ahead whether or not there is a Brexit deal.

The deadline for applying for settled status will be 30 June 2021, or 31 December 2020 if the UK leaves the EU without a deal. Those with five years' continuous residency in the UK who were contemplating making an application may therefore wish to wait until the scheme fully opens after 30 March 2019 to avoid the administrative burden of paying the fee and then applying for a refund.

As Brexit uncertainty continues, the Government has released more information about the proposed immigration system post 29 March 2019, in the event that the UK leaves the EU without a deal. Key points to note are:

  • Free movement will end on 30 March 2019 in the event of No Deal;

  • EU citizens and their family members residing in the UK by 29 March 2019 are welcome to stay but must protect their position/register for settled status (or pre-settled status) by 31 December 2020;

  • After 30 March 2019, EU citizens will be able to enter for up to 3 months (without permission) whether for business purposes or tourism – the three month period applies to each entry and will not be subject to a fee;

  • European Temporary Leave To Remain (ETLR) will apply for stays longer than 3 months. EU citizens will need to apply for temporary permission to stay but permission will not be granted for more than 36 months and it cannot be extended. Applications will be subject to a fee and various checks including security and criminality checks; and

  • EU citizens wishing to stay beyond the parameters of ETLR will need to apply under the terms of the new immigration system (which is yet to be confirmed) which will be implemented from 2021.

What does this mean for employers?

Employers of EU citizens may wish to consider if and what support and guidance they will give the employees who are likely to seek settled status. Those employers who were considering funding applications for their EU workforce as part of their Brexit planning, would be well advised to now wait until the abolition of the fee is in force, rather than seeking to recoup expenditure for applications during the test phase

Online Right to Work Checks and Updated Guidance

Employers can now check the immigration status of new recruits online. The Home Office new Code of Practice has been updated to say that, from 28 January 2019, "an online right to work check will provide you with a statutory excuse against a civil penalty in the event of illegal working involving the subject of the check". The online service gives employers access to up-to-date, real-time information about a migrants' right to work. Individuals are able to authorise their current or prospective employer to see information about their immigration status and to conduct the check via a 'share code'. The service can be used for non-EEA nationals who hold biometric residence permits or biometric residence cards and EEA nationals who have been granted settled status. Employers who choose not to use the online system, or those who do not meet the online criteria, will still need to evidence their right to work via production of the requisite original documents.

A link to the revised Home Office Guidance can be found here which contains further details of the process for online checks.

Authors

Zoë Wigan

Zoë Wigan

London - Fetter Lane

+44 (0)20 7894 6564

Ceri Fuller

Ceri Fuller

London - Fetter Lane

+44 (0)20 7894 6583

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