What Brexit means now: the new toolkit reviewed

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The Home Office published a range of materials for employers to use in understanding its proposed settlement scheme and explaining it to employees.  The toolkit was made available yesterday, Wednesday 25 July 2018.

Slippery when read

One element of the materials that is striking if not surprising is the Home Office’s entreaty to individuals not to rush. ‘Don’t rush’ is repeated within the various promotional materials and prominently displayed on the available posters. There is no explanation of why EU nationals and their family members should not move to secure UK-based rights as soon as they are able to do so.  The Home Office does not disclose any danger that might come from applying for rights under UK law. The materials only remind people that they have until June 2021 to apply.

The vapid caution reminds me of the Home Office’s longstanding policy of dissuading EU nationals and their family members from applying for documentation of their EU rights. Since the referendum, the Gov.uk website has stated that one does not need to apply for a residence card to prove the right to live in the UK unless they are a non-EU, extended family member of an EU national. The wording is misleading because any non-EU family member of an EU national would need documentation to prove the right to work. If an EU national phones the Home Office and asks whether they should apply for documentation, they are similarly discouraged.

EU rights demonstrable through documentation issued in line with EU law are different to the UK rights that EU nationals might gain under the settled status scheme. There are several reasons for EU nationals and their family members to apply for documentation of EU rights while they still can, including facilitating applications for British citizenship and settled status.

Special like so many others

The backdrop of uncertainty and increased chatter regarding a no-deal Brexit might also compel EU nationals and their family members to secure known rights with known application processes and known recourse options in the event of a refusal. Brexit negotiators have drilled into us that ‘nothing is decided until everything is decided,’ but the significance of this position is only now becoming clear. When questioned by the Home Affairs Committee earlier this month on post-Brexit immigration policies, Home Secretary Sajid Javid admitted that the settlement scheme might vary from the proposal in the Statement of Intent, published 21 June, which is based on the Draft Withdrawal Agreement.

The government’s Brexit White Paper, published earlier this month, included some unclear proposals about the post-transition immigration framework that might apply to EU nationals.  What emerges between the lines is an immigration framework with two levels of restriction on migration: one that applies to EU nationals and other ‘close trading partners’, and one that applies to everybody else.

The White Paper reveals that the UK will seek reciprocal mobility arrangements with the EU within a framework in line with arrangements that the UK might want to offer to other close trading partners in the future. The government distinguishes between goods and services in the context of trade relationships, and cites a “liberalising approach to services trade” promoted by Free Trade Agreements. 

The White Paper therefore offers a glimpse into the government’s general attitude towards EU national skilled workers.  They might be special, but there might not be a ‘highest level of special’ as US President Donald Trump might say, for them to occupy.

Keeping it real

The Home Office has gone to great lengths to present the settlement scheme as simple, with user-friendly processes.  However, the government’s post-transition migration strategy that might replace the settlement scheme after the transition period would require complex immigration rules: the immigration framework will have to differentiate between two tiers of migrants based on how closely the UK trades with their countries; it will also have to accommodate variations amongst those countries with which the UK enjoys close trading relationships as it is unlikely that the UK will be successful in getting all those countries to agree to the exact same mobility arrangements.

The beat goes on

The ‘EU Settlement Scheme: Employer Toolkit’ is the latest in a trickle of information dripping out about post-Brexit migration.  So what does the toolkit say exactly? 

It confirms that the application process set out in the Statement of Intent, as follows:

  1. Verification of identity
  2. Confirmation of residence
  3. Criminality check
  4. Payment as required for some applications

The toolkit also provides a few more details on the process than were available previously.  For example, it revels that at the verification of identity stage, applicants applying on smartphones should be able to ‘self-verify’ their passport or identity card and take a photo of themselves. Those not applying on smartphones can submit scanned documents and upload a photo, but they will still have to send in their identity document in order to fulfil the verification of identity part of the process. Note that Sajid Javid confirmed that iPhone users will not be able to use the self-verification process.

Other interesting points in the toolkit include the following:

  • A reminder that non-Irish family members of Irish citizens will need to apply under the settlement scheme if they wish to remain in the UK after 31 December 2020, though Irish citizens do not themselves need to apply under the settlement scheme to protect their rights in the UK.
  • Right to work documentation will remain the same until December 2020, i.e. an EU passport or ID card will suffice for EU nationals.
  • Successful settlement scheme applicants will get proof of their status through an online service. Non- EU family members who do not already have biometric residence cards will get a physical document.

More information will be available in the coming months, particularly in light of a report expected from the Migration Advisory Committee in September, and of course in light of Brexit on 29 March next year.  Until then, I welcome the toolkit as I welcome any information provided on the future of EU nationals in the UK and, like so many others, I hope for the best.

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