On 10 April 2019, the European Council and the UK government agreed to a new, flexible extension of the Article 50 period, lasting only for as long as necessary to ratify the Withdrawal Agreement and, in any event, no longer than 31 October 2019.
That still leaves several possible Brexit outcomes.
By Dan King, Senior Researcher, Newland Chase
Where Are We Now?
The UK and the EU could ratify the Withdrawal Agreement by 31 October 2019. In this case, the UK would leave the EU on the first day of the month following ratification, in an orderly manner, with a transition period.
There could be a no-deal Brexit:
- On 1 June 2019, if the UK fails to ratify the Withdrawal Agreement by 22 May 2019 and also fails to properly hold European Parliament elections on 23-26 May 2019 (unlikely, as the UK has already laid the necessary legislation allowing the UK to take part in these elections); or
- On 1 November 2019, if the UK fails to ratify the Withdrawal Agreement by 31 October 2019.
The UK government could request another extension of the Article 50 period before 31 October 2019, delaying any outcome.
The UK government could unilaterally revoke Article 50, effectively cancelling Brexit – UK nationals would continue to be EU citizens with freedom of movement, as now.
There are, however, only two possible outcomes for which employers of UK nationals working in the EU need to plan: Brexit with a Withdrawal Agreement or Brexit with no deal. In both scenarios, UK nationals and their family members living in the EU will eventually be required to apply for a new national residence status, under rules defined separately by each EU member state.
UK Nationals Already Resident in the EU
If the UK leaves the EU with a ratified Withdrawal Agreement, free movement will continue until the end of the transition period (31 December 2020 unless extended).
The rights of UK nationals and their family members resident in the EU before the end of the transition period will be protected, although registration/residence schemes will vary between member states.
If the UK leaves the EU without a ratified Withdrawal Agreement, UK nationals and their family members already resident in an EU member state by Brexit day will likely be able to stay and continue to work if they register in time. However, this will depend on unilateral arrangements made by individual member states – which in turn may depend on a reciprocal offer by the UK.
Individual EU member states have already prepared special rules for UK nationals in the case of a no-deal Brexit, often with the proviso that a reciprocal offer by the UK is confirmed.
The UK has already reached agreement with Switzerland, Norway, Iceland and Liechtenstein covering citizens’ rights in both deal and no-deal scenarios.
The rights of UK nationals in Ireland (and vice-versa) are covered under the 1949 Ireland Act, which will continue to apply if the UK leaves the EU with or without a deal. A no-deal Brexit will have no implications for UK nationals’ right to reside in Ireland.
UK Nationals Entering the EU
UK nationals entering the EU after the Withdrawal Agreement transition period, or after a no-deal Brexit, will be third-country (i.e. non-EU) nationals. They will no longer benefit from the EU’s freedom of movement principle.
UK nationals wishing to enter the EU for stays of up to 90 days will be able to do so without a visa, provided that the UK reciprocates for EU nationals (subject to the necessary legislation). Falling under the visa-free regime means that, from 1 January 2021, UK nationals will need to apply for ETIAS travel authorisation prior to a trip to the EU.
UK nationals wishing to enter an EU member state for stays of more than 90 days will require a visa.
UK nationals wishing to enter an EU member state for work will need to apply for work authorisation, like other third-country nationals. They may qualify for short-term work permit exemptions where available.
UK nationals travelling to the Schengen area (not Ireland, Bulgaria, Croatia, Cyprus or Romania) will have to have at least six months remaining on their passports from the date of arrival. This applies to adult and child passports. (Any extra months over ten years on a passport (if it was renewed before expiry) may not count towards the six months that should be remaining for travel to Schengen countries.)
How Will This Affect Employers?
With the end of freedom of movement for UK nationals in the EU after the Withdrawal Agreement transition period, or after a no-deal Brexit, obtaining permission to live and work in an EU member state will become much more difficult.
After the transition period, or after a no-deal Brexit, immigration rules for UK nationals already resident in the EU or intending to work in the EU will vary depending on the host member state. They will no longer be covered by EU-wide rules.
Intra-EU mobility will be much more difficult to manage, as implementation of the Van der Elst ruling and the EU intra-corporate transfer (ICT) permit is inconsistent around the EU. Third-country nationals resident in the UK before Brexit will no longer have the right to work in the EU without a work permit under the Van der Elst ruling.
The need for UK nationals after Brexit to fulfil posted worker requirements, including notifications and designation of representatives, will vary depending on the host member state, with or without a ratified Withdrawal Agreement.
What Should Employers Keep in Mind?
Affected employers can protect the rights of their UK national employees to live and work in EU member states by assisting them in fulfilling the new national requirement applicable to them. In addition, employers can plan their future workforce needs in the EU.
Employers need to consider various employee scenarios, including UK nationals on local contracts in the EU, those assigned temporarily to the EU, business travellers and cross-border commuters.
How Can Newland Chase Help?
Newland Chase has developed an extensive service offering to assist employers in supporting their UK national employees in the EU. We can run individual immigration status checks on all affected employees and provide required and recommended actions and deadlines for all possible scenarios.
We can also manage all required immigration applications – including registrations and residence applications for employees and their families, work permit applications, and posted worker notifications.
Furthermore, we can set up training programmes and materials for HR staff and for all affected employees.
What Action Do Employees and Employers Need to Take Now?
To avoid problems in a no-deal Brexit scenario, ensure all UK employees resident in an EU member state (and EU citizens resident in the UK) and their family members have submitted registration or residence applications (where applicable) by Brexit day.
Affected employees should begin gathering documents in support of possible future immigration applications. These documents may include copies of passport data pages, marriage and birth certificates for accompanying family members, employment contracts or assignment letters, CV/resume, current job description, educational certificates, police clearance certificates, rental contract, proof of health insurance and payslips.
If possible, bring forward any planned movements of UK nationals to the EU.
Be prepared for possible lengthy immigration application requirements in any post-Brexit scenario.
Contact our immigration specialists at Newland Chase for case-specific advice.
Register for Newland Chase's live Brexit webinar, UK Nationals in the EU: Brexit Strategy Planning, with immigration experts Sophy King and Marc Smith, as they examine the impact of Brexit on your UK national employees' residence status, steps to take now to protect your employees' immigration status, plus a live Q&A.
Plus, ensure that your business is equipped with the very latest breaking news on what Brexit means for migration by visiting Newland Chase's dedicated online educational resource.
Newland Chase, a wholly owned subsidiary of CIBT, is the leading global provider of immigration and visa services for corporations and individuals with over 1,700 expert immigration and visa professionals, attorneys and qualified migration consultants located in over 70 offices in 26 countries.
Dan King is a Senior Researcher at Newland Chase. Dan monitors developments in immigration law and processes around the world and provides expert knowledge and research support to the company’s advisory services and immigration specialists. He has been particularly instrumental in keeping companies in the UK and EU abreast of the latest developments and guidance throughout the changing Brexit climate. Dan is a graduate of Christ’s College, Cambridge with an MA (Cantab) in Modern and Medieval Languages (Russian and French).
This publication is not intended as a substitute for legal advice. Readers are reminded that immigration laws are subject to change. We are not responsible for any loss arising from reliance on this publication. Please contact Newland Chase should you require any additional clarification or case specific advice.