Statements made by the Immigration Minister, Caroline Nokes MP, to the Home Affairs Committee have triggered concern that aspects of what is commonly referred to as the hostile environment, including right to work legislation, could be forced on EU nationals living in the UK in the event of a no-deal Brexit. We take a look at what this may mean.
The Immigration Minister provided oral evidence to the Home Affairs Committee on Tuesday 30 October 2018. In her evidence she appeared to indicate that the Government may be actively working on plans in the event of a no-deal to ring-fence the rights of EU nationals who are residing in the UK by 29 March 2019. She indicated that a new system may be rolled out, effective immediately after the UK leaves the EU, for EU nationals who are not living in the UK by that date and who wish to come on a long-term basis thereafter.
In her evidence to the Committee concerning no-deal plans, the Minister referred to potential reciprocal arrangements allowing short-term visits/business trips for up to three months with a requirement for mandatory registration under new rules for those seeking to stay for longer. The Minister made a number of confusing statements relating to right to work checks that employers may need to perform.
For the reasons we explain below, by suggesting that employers may need to carry out right to work checks at all on EU nationals, the Minister was in fact suggesting, for the first time, that in the immediate aftermath of Brexit EU nationals may become subject to a tighter form of UK immigration control than has been set out to date. A person who is subject to immigration control can have conditions of stay attached to their immigration status which may set out, for example, restrictions on working in the UK. UK and EU nationals are not subject to immigration control.
It was initially felt by many observers, including our team, that the Minister was having a bad day and had simply got her facts wrong.
Could the Government be considering a tighter immigration system in the event of a no-deal?
We have carefully considered the exact statements the Minister made, many of which she repeated during her session. We have also closely scrutinised emails we have seen that the Home Office subsequently sent out to some stakeholders/media following the Minister’s appearance and we have considered statements made by the Home Secretary during media interviews.
All of this information does indicate in our view that plans for a tighter immigration system for EU nationals in the event of no-deal may be underway.
It has been stressed since the Minister’s appearance that the Prime Minister has been clear that, in a no-deal scenario, the UK will honour commitments made to EU nationals and their family members resident in the UK by 29 March 2019. However, unlike previous communications, no such assurances have been made this week in relation to those who will arrive after 29 March and seek to reside, work, etc. in the UK. The Government’s White Paper, which would presumably include the unpalatable detail of more restrictive arrangements than those currently on the table, is long overdue.
It has also been stressed that there will be a transition period for employers to perform right to work checks. This has widely been referred to as a government ‘U-turn’ but we explain why this cannot be so, as a matter of law, below.
Potential implications of UK domestic immigration law replacing free movement
As matters presently stand, in the event if a no-deal, once the UK leaves the EU on 29 March 2019, the rules governing EU nationals who live in or seek to enter the UK would fall under domestic UK law. The Minister stressed on many occasions during her evidence session on Tuesday that the free movement rights EU nationals benefit from under EU law would end. The European Union (Withdrawal) Act 2018 would come into force meaning that the same rules will apply on the day after Brexit as the day before. Crucially, however, these rules would fall under UK, not EU, law which can be changed.
If a deal is not agreed, the Government would, in theory, be able to apply new immigration rules and restrictions as it sees fit, when it sees fit. Thus far, presumably to avoid a backlash of the type never seen before, the Government has not released its plans for a no-deal in relation to the movement of persons.
Up until this week, the Government’s position has been that it will apply a light touch to EU nationals who live in or come to the UK until the end of 2020 and that they will continue to be treated in much the same way as now, although they will have to apply under the EU Settled Status Scheme by June 2021. This week’s events appear to indicate that the assurances made so far only relate to a scenario where a deal is reached with the EU. This is concerning because the information provided by the Home Office to date on the EU Settled Status Scheme has not clearly indicated that its continuation for EU nationals moving to the UK post March 2019 rests on a deal being struck.
If a deal is not reached, legislation could be enacted which could subject EU nationals to similar immigration laws and conditions that non-EU nationals are subjected to. These measures could include, for example, restrictions on work, penalties for employers who employ those who do not have appropriate immigration permission, where required, etc.
EU nationals who are already in the UK by 29 March 2019 will of course be able to apply for indefinite leave to remain (if they have been in the UK for at least five years) or limited leave to remain (if they have not) under the EU Settled Status Scheme. Although it would be complex, the Government could ring-fence their rights whilst also introducing a tougher set or rules for those entering after March 2019. It is not surprising that the Minister struggled to explain what would be an extremely controversial arrangement.
Some limited information on what a new immigration system for EU nationals (potentially implemented swiftly after March 2019 in the event of a no-deal or in January 2021 if there is a deal) may look like was provided in July 2018 in a Brexit White Paper. The Migration Advisory Committee provided advice to the Government on this issue in September 2018.
When do employers currently need to carry out right to work checks?
Since the Minister’s appearance before the Home Affairs Committee on Tuesday, the Home Office and the Home Secretary have stated there will be a transition period for employers.
In our view this is potentially misleading. In basic terms, under the Immigration, Nationality and Asylum Act 2006 it is currently unlawful for an employer to employ a person who is:
- subject to UK immigration control; and
- needs permission to perform the work in question; and
- does not have such permission.
Under section 15 of that Act, an employer who does employ a person who does not have permission to work but who has carried out checks in accordance with Home Office guidance is able to benefit from a statutory excuse against a civil penalty. Carrying out a check affords protection to the employer that they would otherwise not have, similar to taking out an insurance policy. UKVI usually adopts the position that sponsor licence holders must carry out such checks (although the sponsor guidance is poorly worded and arguably, this is not a specific sponsor duty).
At present, EU (and UK) nationals are not however subject to immigration control (a term defined in the Immigration Act 1971). They are not covered by this legislation and there can be no civil penalties applied in relation to their employment.
Once UK law applies, in theory, EU nationals could become subject to tougher UK immigration control.
What right to work checks would an employer wanting protection undertake now and will these change?
The exact checks that an employer can choose to perform if they wish to be protected against the civil penalty regime are set out in Home Office Guidance.
Currently, if an employer checks a UK or EU passport or EU identity card, this is all that is needed to benefit from protection. In the event that it subsequently transpired that, for example, the document was not authentic – a fake British passport or EU identity card for example – and the person was a non-EU national who did not have the right to work in the UK, an employer who made a check would be protected from a civil penalty of up to £20,000. An employer who had not made a check would be exposed.
We therefore recommend to all employers that wish to benefit from protection against the risk of civil penalties that they make it a contractual requirement for prospective employees to provide evidence of their entitlement to work in the UK. For many businesses, a fine of up to £20,000 could be devastating. Performing a right to work check is generally a relatively quick and simple process affording protection against such a scenario.
The Government’s position, following the Minister’s confusing statements to the Home Affairs Committee, is that employers would not be expected to scrutinise the EU worker’s specific circumstances to assess when they arrived in the UK and that there would, in any event, be a transition period before the right to work check regime is implemented. As we have explained however, there is no such legislation currently in place to transition from in relation to EU nationals.
The point that needs to be addressed is not the detail of any right to work checks on EU nationals, but the legal basis for them in the first place.
In the event of a no-deal, if the Government is considering enacting legislation that could apply the right to work regime to EU nationals and employers, and if it is planning a set of tougher rules regulating work rights etc. for those who arrive after March 2019, it is critical that clear information is placed in the public domain urgently so that employers can make appropriate arrangements.
Whilst the technical detail of how and when to conduct a compliant right to work check on an EU national will need to be considered in the future, in the event of a no-deal, what employers really need to know right now is:
- Is there any risk that they may face any restrictions on recruiting EU nationals who are not already in the UK after 29 March 2019?
- Is there any risk of any restrictions on the work those individuals can do?
- During any transition period, exactly what will the legal status of EU nationals be?
- In terms of right to work checks, would employers need to treat all EU nationals who do not have indefinite leave to remain after 29 March 2019 as being subject to UK immigration control? If so, when will relevant legislation be amended and when will details of the checks that will need to be performed to benefit from a statutory excuse be available?
These are also pretty fundamental issues for EU nationals.
With less than six months to go, it is critical that the Government provides clear information on what its position is on these points.
We will be monitoring developments closely and will provide updates as soon as further information becomes available. If you need any further information, do contact us.