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In part one of this series, we considered the lessons to learn from Windrush. In part two we are turning our attention to Brexit, the rights of EU nationals in the UK and the reciprocal rights of British citizens living in the EU. Read more about our UK Immigration Legal Services.


Home Office ‘guidance’ can be misleading

If you ask a room of people what is happening with Brexit, and what the future of our immigration system will look like for EU nationals, the chances are you will hear this reply: ‘nobody knows’.

This may in part be from the official statement from the Home Office and the Department for Exiting the European Union (DExEU) which states as follows:

‘There is no need for EU citizens living in the UK to do anything now. There will be no change to the status living in the UK while the UK remains in the EU.’

This statement is only half accurate. Whilst it is true that EU nationals are not required to take any immediate action due to Brexit, there are certainly steps that EU nationals could, and arguably should, be taking now to make things as smooth as possible for them and their families when we leave the UK.

Once we leave the EU, EU nationals will be expected to apply for new ‘Settled Status’ documents to evidence their right to remain in the UK. EU nationals are not currently required to apply for immigration documents under EU law, but it is possible to do so. The Home Office have committed to providing a free and easy system for exchanging an EU immigration document for a new ‘Settled Status’ document. Despite this, the Home Office is not encouraging EU nationals to start protecting their status now. It is unclear why the Home Office appears to be encouraging inaction. It could be because the new Settled Status application will demand a higher fee than an EU application and so would be more cost/effective for the Home Office fee targets. If so, the Home Office’s commitment to protecting the interests of EU nationals must be questioned.

As discussed in part one of this series, if EU nationals do not take early steps to prepare for Brexit then there is a risk that millions of families will find themselves having to gather years worth of residence documentation and file successful applications for ‘Settled Status’ before the end of the transition period, suggested to last from March 2019 to December 2020. The Home Office will be inundated with applications during that period, which means that it could take a long time for decisions to be processed. If an application is refused in those circumstances, applicants may find that they have little time to prepare a new application with updated documentation.

The logical conclusion appears to be clear – EU nationals should consider taking steps sooner rather than later to protect themselves. Doing so could well be cheaper and more stress-free. The Home Office however has not provided this information in a clear format for those millions of EU nationals residing lawfully in the UK.

Employers must tread carefully

Employers are equally affected by the lack of clear guidance from the Home Office. As the UK slowly transfers EU nationals over to the Settled Status system, their employers will have to prepare for the inevitable right to work checks which will apply under that system.

Simply taking a copy of an EU national’s passport will no longer be enough to satisfy the Home Office that adequate checks have been carried out after the transition period has ended in December 2020. An EU national’s immigration status will need to be evidenced by a separate document, most likely in the form of a Biometric Residence Permit.

The issue here is again one of poor guidance and poor communication. Many businesses rely heavily upon EU workers and need certainty on how they can continue to operate their business model in the coming years. So far, employers are not being actively prepared for these changes.

In our view, as we approach the transition period, employers should be taking the opportunity to audit their HR files so that they can work cooperatively with their employees to support any application for EU residence documents or, later down the line, Settled Status documents. It is in the interests of both the employee and the employer to tackle these issues so that there is no disruption to the employment relationship.


  1. Do not blindly follow Home Office guidance on Brexit. There may be sensible alternatives and proactive steps you could be taking to prepare yourself.
  2. Employees and employers should work together to mutually protect each other from risks arising from the new immigration system.

If you are affected by Brexit or any of the other points mentioned in this article, do not hesitate to get in touch with a member of our Immigration team on 01522 541 181 or email