Brexit
What happens after 31 January 2020?
When is Brexit?
UPDATE: Following the UK general election on 12 December 2019, the Conservative government held another vote on the European Union (Withdrawal Agreement) Bill on 9 January 2020. The Bill passed with a majority of 358 to 234 votes. The UK's "exit day" was on 31 January 2020. The transition period ends on 31 December 2020. From 1 January 2021 new rules will apply to businesses and individuals. Have a look at the government's guidance to the changes to help yourself prepare.
How do I check a European worker's right to work?
Have a look at our latest legal bulletin for a closer look at right to work for EU citizens.
You can see the latest government guidance on checking a European's right to work here.
The Home Office have stated that right to work checks for EU/EEA/Swiss nationals will remain the same until 30 June 2021 – this means that you can continue to use their EU/EEA/Swiss issued passport/ID card as proof of right to work until then. The Home Office have advised that you should not ask for their settled/pre-settled status until after 30 June 2021.
We have asked government if they are going to change the legislation on right to work to reflect the fact that the immigration system is different for those EU/EE/Swiss and international individuals entering the UK from 1 January 2021 but as yet they have not changed the legislation. Therefore, until explicitly told otherwise via legislation, you should continue to check right to work as stated in the Home Office right to work guidance using the documents listed in Annex A and B. It is unlikely that they’ll change the legislation prior to January 2021, especially as they’ve said all EU/EEA/Swiss national can continue to use their ID cards/passports as right to work proof until 30 June 2021 but, as ever, watch this space.
Irish citizens will retain their right to work in the UK as they do now and you can check their right to work as normal.
From 1 January 2021 new guidance will apply for right to work checks under the new immigration system. This has not yet been issued.
EU right to work
EU citizens in the UK by 31 December 2020 have until 30 June 2021 to apply for the EU Settlement Scheme. EU citizens in the UK can continue to use their passport/ID card as proof of right to work until 30 June 2021.
EU citizens entering the UK from 1 January 2021 will only be able to enter to live and work if they have pre-settled or settled status under the EU settlement scheme or they have indefinite leave to remain. If they don’t, they’ll have to apply under the new immigration system for the right to live and work in the UK. We cannot provide detailed immigration advice but you may find the government’s guidance to the new points based immigration system helpful – they also have employer focused guidance.
You might also find our Brexit legal guide useful as well as our Brexit hub. The government’s employer toolkit may also help you. I believe that the REC is also planning some Brexit workshops in conjunction with immigration law firm, Fragomen – please speak to your account manager for more information on 020 7009 2100.
How to check an EU worker’s right to work
The government has guidance on how to check right to work via an online share code or original documents.
- You can use their EU issued passport or national ID card until 30 June 2021. For the time being, RTW checks can be carried out in line with the Coronavirus (COVID 19): Right to Work Home Office provisions.
Once the temporary coronavirus RTW checking procedures end, employers will be required to carry out checks in line with the regular Right to Work guidance within 8 weeks of the temporary measures ending. Unless and until there is any exception provided around this, you will have to undertake the retrospective checking.
- To check settled/pre-settled status - https://www.gov.uk/check-immigration-status
- There is also guidance for workers about what they need to provide to you - https://www.gov.uk/view-prove-immigration-status
- If you know that they’ve applied via the new immigration system from 1 January 2021, you’ll have to check their visa or appropriate documents.
Please keep an eye on our Brexit hub for updates.
The new immigration system from 1 January 2021
The future skills-based immigration system white paper sets out the government's plans to introduce a new single immigration system from 1 January 2021.
In either scenario you should put right to work checks in your diary for affected workers well before the deadlines so that you can ensure continuity in your workforce provision.
Will someone's permanent residence document still be valid?
If you hold a permanent residence card you will still have to apply to the EU Settlement Scheme for a status decision to remain in the UK after 30 June 2021. EU settled status will allow you to be outside the UK for up to 5 years without losing your indefinite leave to remain.
Alternatively you could apply for British citizenship.
The UK and the EU have agreed that permanent residence documents or registration certificates will be invalid after Brexit.UK Visa and IImmigration's intention is to not make any update to acceptable right to work documents until 1 July 2021. In practice this means that residence documents and permanent residence documents will continue to be acceptable documents on the UKVI Right to Work Checklist and thus establish a statutory defence for employers in the period from 1 January 2021 to 30 June 2021.
See the government's guidance on what to do if you have a permanent residence card. See the government's general scheme guidance here. See Fragomen's guide to managing a migrant workforce here.
How can we establish and maintain our statutory excuse?
By carrying out the authorised right to work checks and complying with the Code of Practice on preventing illegal working you can establish and maintain a statutory excuse against employing an illegal worker even if it turns out that they are in fact illegally working in the UK.
The checks as they stand now for EU/EEA/Swiss nationals will be applicable until 30 June 2021.
The need to establish and maintain a statutory excuse only applies to employment that began on or after 29 February 2008. The date on which a person’s employment started on or after 29 February 2008 will determine what right to work checks apply to establish a statutory excuse.
What rights do EU nationals have to come to work in the UK after Brexit?
Do we need to end assignments prior to exit day for EU nationals?
There is no requirement to end assignments or make roles redundant if they are filled by EU nationals. There are protections in place for EU nationals in to ensure they can remain in the UK to live, work or study.
Are Europeans going to be banned from entering the UK after Brexit?
No. There are provisions in place to allow citizens from the European Economic Area to remain and enter the UK to work, live and study.
What is the EU Settlement Scheme?
The rights and status of EEA citizens living in the UK will remain the same until 30 June 2021.
Those EEA citizens already in the UK and those EEA citizens that arrive in the UK by 31 December 2020 will be eligible to apply to the EU Settlement Scheme for settled (indefinite leave to remain) or pre-settled (limited time to remain) status up to 30 June 2021. If they fail to make an application for settled or pre-settled status they will have to leave the UK or apply for leave to remain under the new immigration system being introduced on 1 January 2021.
If the EEA person has previously lived in the UK with indefinite leave to remain but they have been out of the UK for more than 2 years they will have to contact the Home Office to see if they are eligible to return on the same terms or whether they have to apply for a status decision via the EU Settlement Scheme.
Pre-settled status, if granted, will allow an EEA citizen to stay in the UK for 5 years. The EEA citizen can then apply for settled status if they meet the requirement of 5 continuous years living in the UK.
Successful applicants will be given digital proof of their status. Paper copies will only be given in limited circumstances. The worker will be able to prove their right to work online. The government guidance suggests that this will be enough to prove their right to work but for official guidance on checking right to work via online settled status we will have to wait for the Home Office to update their right to work guide. See the government's tool to check whether a worker's documents give them the right to work.
EU Settlement Scheme - are Irish citizens exempt?
There are some people who won’t need to apply to the EU Settlement Scheme as can be seen in the list here including Irish citizens. What is the app called for applying to the EU Settlement Scheme? ‘EU Exit: ID Document Check’ - see the government's guidance here.
- only available on android phones with near-field communication (NFC) via their app store. It allows you to quickly and securely confirm your identity as part of your application to stay in the UK after Brexit. If successful, you will not have to send in hard copy documents when applying via the online scheme.
- You will still have to send in physical documents if you are unable to use the app because you do not use an android phone.
See the new tool from the government - Online right to work check for employers.
UK workers in the EU after Brexit
Essentially, the UK is negotiating to protect the rights of UK workers in the UK but they are unable to do so unilaterally and as such are reliant on agreement from the EU. You can access further guidance:
Data Protection after Brexit
What happens about data transfer to and from the EU?
The GDPR has been written into our domestic legislation in the Data Protection Act 2018.
Please see the REC's data protection guidance relating to Brexit.
There is more information from the ICO and government below:
- Government's guidance to getting your organisation prepared
- ICO's guidance on international transfers
- ICO's guidance on appointing an EU representative where your business does not have a presence in the EEA.
VAT
This applies to the construction sector only and has been postponed until 1 March 2021. Please see the REC's guidance on the reverse charge. Please also read the government's guidance to the VAT reverse charge.
VAT generally
The VAT regime that will apply generally between the UK and EU countries that will depend on the exit agreement.
Discrimination law after Brexit
What is the law currently?
Please see the REC’s legal guide to the Equality Act 2010. This section will be updated with any changes.
Will it change after Brexit?
EU employment law provides a minimum standard below which domestic employment law must not fall. The UK government have made a commitment to ensure that workers’ existing rights are retained.
What are the ‘technical notices’ that keep being mentioned?
Government guidance on how to prepare for a no-deal Brexit – technical notices.
Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.