In August 2018, the Secretary of State for the Department for Exiting the European Union delivered a speech outlining the government's plan in the case of a no-deal Brexit and announced the publication of a series of technical notices. Designed to inform and guide on preparations for a potential no-deal Brexit, one such notice covered workplace rights and advises that any changes to employment legislation in the event of a no-deal Brexit, will be solely linguistic and not change substantive employment rights. However, amongst other things, the notice advises that rights on an employer's insolvency and in respect of European Works Councils may be affected. This was followed in October 2018 by the Employment Rights (Amendment) (EU Exit) Regulations 2018 and Employment Rights (Amendment) (EU Exit) (No. 2) Regulations 2018 being laid before Parliament. The Statutory Instruments make technical changes to UK employment legislation to reflect the UK's withdrawal from the EU in the event of a no-deal Brexit.
After the UK leaves the EU, free movement will end. However, European workers living in the UK will be able to apply for settled status from 2019 thus allowing them to remain indefinitely after the Brexit transition period finishes. To be successful in their application, the worker must have resided in the UK for five years by the date of their application. Those who don’t qualify will be able to apply for temporary status which will allow them to remain until they have achieved the qualifying residency period and can apply for settled status.
Further details emerged when the government published its long-awaited White Paper on the UK's future skills-based immigration system post-Brexit on 19 December 2018.
The White Paper assumes the implementation period provided for under the draft Withdrawal Agreement will run until 31 December 2020, with proposed visa routes to be published in the Immigration Rules in autumn 2020. The White Paper does not set out the Government’s proposals in the event of a no-deal Brexit.
The Government has stated that it will continue to engage and consult on key aspects of the new immigration system for the next 12 months
The key provisions of the White Paper include the following:
- Freedom of movement will end on 31 December 2020.
- The Government will aim to reach reciprocal agreements for short-term visits and intra-company transfers between UK and EU companies.
- The same UK immigration rules will apply to all migrants from 2021 and the government will continue to work to reduce net migration to "sustainable levels".
- Skilled and highly-skilled migrants' applications will be considered under Tier 2, which will be further reformed. The White Paper states that the skills threshold will be lowered, the resident labour market test will be abolished and the annual cap of 20,700 will be removed. However, the decision on salary threshold for sponsorship has been put back for further consultation.
- Certain routes under Tier 2 will lead to settlement.
- Employer sponsorship will be on a lighter-touch and more straightforward basis so that, in most cases, the aim will be for employers to recruit migrant workers in two to three weeks.
- A temporary worker route will be available as a transitional measure for lower skilled jobs, for up to 12 months at a time, with a 12-month cooling off period to prevent further applications for leave, and no requirement for sponsorship. This route will have conditions restricting access to public funds, switching and making applications to extend, and will not lead to settlement. A full review of this route will take place in 2025.
