If there is no-deal the Government plans to end free movement as soon as possible. However, the Government has set out transitional arrangements which will apply to EU nationals who arrive in the UK after 11pm on 29 March 2019 but before midnight on 31 December 2020. After 31 December 2020 any EU national who wishes to come to the UK will need to qualify under the new immigration system.
The transitional arrangements are as follows:
- If there is no-deal a transitional period will be in place between 30 March 2019 and 31 December 2020;
- During this period, EU nationals will be able to come to the UK for up to three months without applying for any immigration status or visa;
- They will be able to enter the UK by showing either a valid EU passport or ID card. If they have a biometric passport they will be able to use e-gates as they do now. When they arrive they will be automatically granted leave to enter for three months with the right to work and study;
- To stay longer than three months they will need to apply online for a new status called European Temporary Leave to Remain (ETLR). ETLR will allow them to continue to live, work and study in the UK;
- ETLR will only be valid for three years and cannot be extended. It will not lead to indefinite leave to remain (ILR) in the UK or status under the EU Settlement Scheme;
- Applications for ETLR will be subject to identity, criminality and security checks;
- There will be a fee for applications for ETLR;
- To stay for longer than three years EU nationals will need to apply to switch into a suitable immigration category under the UK's new skills-based immigration system due to come into force from 1 January 2021. The proposed future system was set out in the Immigration White Paper published in December 2018; and
- EU nationals who arrive in the UK during the transitional period may be accompanied or joined by non-EU nationals who are “close” family members (i.e. spouse, partner and dependent child under 18 years). These family members will need to apply in advance for a family permit.
It is helpful for employers and EU nationals to know that, even if there is a no deal Brexit, EU nationals will be able to continue to come to the UK to live and work during the period up to 31 December 2020.
However, businesses and individuals should be aware that EU nationals who arrive after 11pm on 29 March 2019 and who are granted ETLR for three years may not qualify under the new immigration system to stay for longer once their three years’ leave expires and they would need to leave the UK. Employers should ensure that employment contracts make it clear that employment may be terminated if the individual no longer has the right to work in the UK.
The definition of non-EU national “close” family members who can accompany or join an EU national arriving in the UK after 29 March 2019 if there is no deal is also much narrower than under existing EU Regulations.
The proposed arrangements do not affect EU nationals who arrive in the UK by 11pm on 29 March 2019. They will be eligible to apply for status under the EU Settlement Scheme whether the UK leaves the EU with a deal or not. We recommend that any EU national arriving in the UK on or before 29 March should keep their tickets and boarding pass as proof of when they arrived.
Finally, regardless as to whether there is a deal or no-deal, the Government has confirmed that, during the transitional period (which would last until 31 December 2020), a valid EU passport or ID card will continue to be sufficient proof of right to work.