Virginia, US
After a series of complex negotiations, Brexit has been delayed until 31 January, 2020. A General Election is scheduled in the UK for 12 December 2019.  Each political party has a differing view on Brexit, by the current Prime Minister, Boris Johnson is hoping for a majority government to force through his Brexit deal and if not, leave without a deal in place. The leadership of the EU is also changing. Ursula von der Leyen will become the new President of the European Commission o0nce her Commission is approved by the European Parliament. She will have a five year term and replace Jean-Claude Junker.  Meanwhile, the new President of the European Council, Charles Michel, will take office on 1 December 2019, for a two and half year term. The approach these new leaders take may impact the course of Brexit.
 
There are still a range of possible options for how Brexit will proceed:
 
  1. DEAL - If both the UK and the EU ratify the Withdrawal Agreement before 31 January, the UK would leave the EU on the 1st of the following month with a deal. However, given the General Election in the UK, it is unlikely that this ‘flex-tension’ will be utilised. If there is a deal, free movement will continue during an ‘Implementation Period’, which would end on 31 December 2020. 
  2. EXTENSION - A further extension to Brexit is requested by the UK government and granted by the remaining EU Member States unanimously.
  3. NO DEAL - The UK leaves without a deal. This means that the freedom of movement of EU nationals stops applying to UK citizens as of Exit Day. A transitional status is envisaged for European nationals in the UK.
  4. NO BREXIT - The UK revokes Article 50 unilaterally (presumably after a General Election or Second Referendum) and thereby cancels Brexit. The EU does not have to approve this revocation.
 
At Fragomen, we continue to monitor the situation as it evolves and we have released a number of guides to help our clients prepare for various scenarios.
 
 
Brexit in the UK

 

There are an estimated 3.4 million EU nationals living in the UK, exercising their right of free movement. Employers must ensure that they have strategies in place to ensure that each impacted individual makes an application to evidence their right to live and work in the UK.

 

Deal

 

EU Nationals who reside in the UK on or before 31 December 2020 must apply for status under the EU Settlement Scheme. The deadline to apply is30 June 2021. This online, straightforward application will give individuals an online status which they will use to prove right to work (and other entitlements) in the future.

 

EU Nationals who relocate from 1 January 2021, will need to meet the requirements of the UK’s immigration rules. A new immigration system is expected by then. The May government published a White Paper in December 2018 ( White Paper guide) but the current Home Secretary favours an Australian Points Based System

 

No Deal

 

EU Nationals who reside in the UK on or before Exit Day must apply for status under the EU Settlement Scheme on or before 31 December 2020.

 

EU Nationals who relocate to the UK from Exit Day up to and including 31 December 2020, may stay and work in the UK until the end of 2020. If they wish to stay beyond this, they must apply for European Temporary Leave to Remain which is a 36 month permission during which an individual can remain in the UK and work in any capacity. After this time, the individual will need to qualify to stay under the immigration rules but as much about the new regime which will be in place at that time is unknown, there is much uncertainty for employers and individuals using this route.

 

EU Nationals who relocate from 1 January 2021, will need to meet the requirements of the UK’s immigration rules 

 

Brexit in the EU

 

Click here for the Brexit No Deal Guide

 

Brexit will not just impact immigration rules in the UK. It will also affect the immigration requirements for UK nationals travelling to, living and working in the EU member states and it will impact their social security liabilities and benefit entitlements as well.

 

Immigration rules in the EU vary wildly across the countries - this will lead to divergences and more complex processes, particularly in a no-deal scenario which makes it more difficult for employers to make contingency plans to mitigate risks.

 

Deal

 

The UK and EU have agreed that British citizens who are residing in an EU Member State before 1 January 2021 will be able to continue their residence and employment in the EU country where they reside. Similar provisions exist based on bilateral engagements for UK nationals living in EEA countries and Switzerland.

 

British citizens will be expected to make an application for a residence document (either a permanent residence if they have been residing in their host country for more than five years or for another type of residence document if they do not qualify for permanent residence). UK nationals who move to the EU after the end of the transition period (31 December 2020) will have to comply with EU and national immigration rules, i.e. obtain a work permit. New restrictions will also be in place for business visitors, assignees, cross border workers.

 

No Deal

 

EU Member States have set grace periods during which UK nationals living in Europe need to take steps to protect their residence and work permits rights. Those grace periods vary from country to country. There is a risk that those who do not qualify for a work permit will have to stop work and those who work across borders will face particular challenges.

 

UK nationals who take up EU residence after Exit Day will need to apply for immigration permission to live and work in that EU country, and UK national business travellers to the EU will need to understand whether their activities are acceptable as a visitor in each destination country or if work permit requirements apply in their particular circumstance.

 

Irish Nationals

 

Irish nationals will be able to continue work and live in the UK and are not required to apply under the EU Settlement Scheme. However, any non-Irish family members will be required to make an application either under the EU Settlement Scheme or the Immigration Rules.

 

Individuals may be interested in exploring whether they are already Irish or whether they are entitled to apply for Irish citizenship through their parents or grandparents. Fragomen can help with this.

 

Switzerland

 

Switzerland and the UK have safeguarded the existing rights of their citizen for the time when the UK is no longer a member of the EU. Both Swiss and British citizens will retain the rights granted under the Agreement on the Free Movement of Persons (AFMP) between Switzerland and the EU after Brexit. The Agreement will enter into force when the AFMP between Switzerland and the UK is no longer applicable, which is at the end of the transition period agreed between the EU and the UK.

 

The process applicable to UK nationals wanting to move to Switzerland after Brexit will follow the non-EU nationals’ regulations. This is particularly important in case of a localisation of a UK national. Of course, the Swiss government aims to facilitate the process for UK nationals by introducing separate work permit quotas for locally hired UK nationals as well as classify them as non-visa nationals.

 

What should employers do now?

 

It is easy to feel overwhelmed by Brexit planning, particularly given the uncertainty over the terms and date on which in the UK will leave. However, there are sensible, practical steps which should be taken now to ensure could are not caught short, come Exit Day.

 

  1. Know your numbers, the countries where you will be affected and the profile of your employees
  2. Communicate, reassure and educate your populations, and don’t forget business traveller and cross border worker populations
  3. Focus no-deal contingency planning on UK nationals in Europe. Ensure that, where possible, applications are filed
  4. Consider bringing forward moves to take advantage of free movement whilst it is in place
  5. Plan your post-Brexit recruitment strategy now, for the UK and the EU, and have a policy in place
  6. Don’t forget social security and posted worker obligations
  7. Plan for a new immigration regime in the UK. Whatever the new system, it will be harder, more time consuming and expensive than free movement.

 

Ensure you are not working in silo. Brexit is an issue for every European jurisdiction. Ensure that all European offices are supporting UK national employees in the EU and vice versa to ensure that you are prepared with a comprehensive no-deal contingency plan.

 

For detailed information on how to prepare, please consult our guide.

 

How can Fragomen help?

 

With this degree of uncertainty, you need an advisor who can see the global framework, provide a holistic view of the risks and opportunities that Brexit could present, and give you a voice at decision-makers’ tables.

 

We are best placed to deliver sound legal advice and help you understand what other businesses are doing to prepare. Whether you are planning for a deal and transitional period or contingency planning for no-deal, we can partner with you to:

 

  • Limit the impact on your staff’s mobility in and to the EU/UK
  • Provide you with benchmarking knowledge, events and tools
  • Screen your EU/UK population to identify and track affected staff
  • Develop a communication strategy for your employees, to inform them about political and legal developments and the impact on their rights (e.g. in the social security area)
  • Conduct one-to-one consultations and give personalised advice
  • Develop strategies ensuring compliance continuity with clear timelines and deadlines
  • Discuss and re-think your future recruitment or relocation policies to avoid disruptions

 

We are working with clients in many different ways to make sure they are ready for Brexit in all its guises.

 

The most common types of services for clients with EU populations in the UK is:

 

  • Change Management Consultancy – We are here to help you devise and implement a three-year plan to ensure you are ready for Brexit. We can help you advise the business about the path ahead, identify populations who could get forgotten (such as business visitors, frontier workers and those on assignment) and ensure you have measurables to evidence the success of the project
  • New immigration regime consultancy – We can help you conduct a gap analysis and identify issues that the proposed new regime may cause for your business. It is really important that reports on costs are provided to internal stakeholders so that businesses can make informed decisions on future strategy. HR and Mobility professionals are a crucial part of this and must ensure executive engagement
  • Townhalls/Webinars – We can deliver sessions to help your EU population in the UK understand what they need to do, what their family need to do and how to ensure that they retain their status
  • EU Settlement Scheme Surgeries – We can hold drop-in sessions to help your staff with their queries or process their applications
  • Transactional services – We can run EU Settlement Scheme applications from start to finish, ensuring project management and expiry tracking
  • Communications – We can draft communications to explain the current position to your workforce or internal stakeholders to reassure and to educate
  • Content – Create bespoke help sheet for issues for your business such as international business traveller populations or those on assignment outside of the UK
  • Guides/FAQs/Videos – We can provide self-help manuals to explain the processes which are ideal for publishing on your company’s intranet site

 

The most common types of services for UK nationals in the EU are:

 

  • Change Management Consultancy – We can help you devise and implement a plan to ensure you are ready for the complexity Brexit will bring across the 27 different immigration schemes in Europe. We can help you advise the business about the path ahead, identify populations who could get forgotten (such as business visitors, cross border workers and those on assignment) and ensure you have measurables to evidence the success of the project
  • Townhall/Webinars for UK nationals in the EU, with specific focus on the EU countries relevant for your staff
  • No deal matrix – We have a quick reference tool to assess what UK nationals living in the EU can do to protect their work and residence rights in the EU country where they are already living
  • Business Visitor Quick Glance Matrix – We are able to provide a quick reference tool so you can assess the activities that do not require a work permit in each EU/EEA country and Switzerland
  • Communications – We can draft communications to explain the current position to your workforce or internal stakeholders to reassure, educate, and provide general advice
  • Content – We can create a bespoke help sheet for issues that are relevant to your business
  • Screen your UK population in the EU/EEA and Switzerland – Assess their current situation, advise on the steps to be taken before and after Brexit, triage them according to risk factors and proceed with relevant residence and work permit applications as soon as possible
  • Tailored visitor visa matrix - A detailed matrix summarising business visitor rules & restrictions across Europe, tailored towards the activities of your business



If you have any questions, our Brexit Task Force is here to help. Please contact us at brexit@fragomen.com.