On 4 September, the Westminster government published guidance on EU workers’ immigration rights after a 31 October no deal Brexit, replacing its January guidance.
The guidance on how employers conduct right to work checks between 31 October 2019 and 31 December 2020 is broadly similar to that in the previous version.
Assuming a no deal Brexit, the guidance states that from 31 October 2019 until the new points based system (PBS) is introduced on 1 January 2021, EU citizens will be able to move to the UK to live and work as they do now. They will be required to apply for European Temporary Leave to Remain (ETLR) if they intend to stay for more than 3 months, which will entitle them to remain for up to 3 years.
The guidance states this will provide: “EU citizens who move to the UK after exit and their employers with greater confidence and certainty during the transition period.”
In the same vein the guidance states that EU citizens and their family members who move to the UK will need to have applied for a UK immigration status (I.e. ETLR or under the new PBS) by 31 December 2020, otherwise they will be here unlawfully - which suggests (contrary to the apparent requirement to apply for ELTR for any stays over 3 months post 31 October) that EU citizens may enter and work until then as they do now.
Key for employers is that the guidance states: ‘Employers... will not be required to distinguish between EU citizens who moved to the UK before or after Brexit until the new points based immigration system is introduced from January 2021.’
It adds: ‘Until 31 December 2020 checks on an EU citizen’s right to work will be undertaken as they are now and all EU citizens will be able to evidence their rights here using their passport or national ID card.’ EU citizens can choose to use digital evidence of settled status or ETLR during this period – but can also choose instead to rely on their passport or ID card.
There is a lack of clarity here on whether EU citizens in the UK for over 3 months without ETLR between 31 October 2019 and 31 December 2020 will be acting lawfully. The guidance does however appear to be clear that this need not concern employers.
Employers should therefore continue to carry out the 3 step check on right to work: checking originals, copying and keeping a dated copy of right to work documents as set out in the Home Office guide.
Any employers with concerns over rights to work in specific cases should seek early legal advice. This is of course a fast-moving area and we will continue to update as more detail becomes available.