Will they, won't they? No deal Brexit and the end of freedom of movement on 31 October? The current position

Will they, won't they? No deal Brexit and the end of freedom of movement on 31 October? The current position

Will they, wont they? No-deal Brexit and the end of freedom of movement on 31 October? The current position

In August the government unexpectedly reported it effectively planned to end freedom of movement immediately after Brexit if the UK leaves the EU without a deal. This led to a lot of confusion among EEA nationals and employers. The Home Office then clarified that there will be no change to the EU Settlement Scheme in relation to those EEA and Swiss nationals already resident in the UK by the date of Brexit, regardless as to whether the UK leaves the EU with or without a deal.  A few weeks later the Home Office also quietly issued guidance making it clear that EEA nationals will still be able to move to the UK after Brexit until 31 December 2020, even if there is no deal.

EEA and Swiss nationals who are in the UK by Brexit day - the EU Settlement Scheme

The EU Settlement Scheme will continue to apply for EEA and Swiss nationals and their family members who are already living in the UK by the date on which the UK leaves the EU. Under the Scheme, EEA and Swiss nationals and their family members must apply to obtain either settled or pre-settled status in order to continue to live and work in the UK.

If the UK leaves the EU with a deal, they have until 30 June 2021 to apply and if the UK leaves the EU with no deal, they will have until 31 December 2020 to apply.

There are very few limited exceptions.  For example, those with indefinite leave to remain and those who are Irish nationals do not need to apply under the Scheme.

EEA and Swiss nationals arriving in the UK after Brexit day

In the event of a no deal Brexit, the previous Government set out transitional arrangements which would apply to EEA and Swiss nationals arriving after Brexit day but before 1 January 2021.

During this transitional period, EEA and Swiss nationals would continue to be able to come to the UK to live and work in the UK during the period up to 31 December 2020. 

However, in August the Home Office caused alarm when it announced that these arrangements were under review and that there may not be a transitional period for EEA and Swiss nationals arriving after Brexit day.

Concerns

This led to many unanswered questions.  If free movement were to end immediately after Brexit, there were serious concerns that there would be no easy way for immigration officials, employers, the NHS or landlords to differentiate between EEA and Swiss nationals who were living in the UK by 31 October but have yet to apply under the Settlement Scheme and those who arrived for the first time after 31 October 2019.

It would clearly also be impossible for the Government to create and implement a new immigration system in less than two months, assuming we still leave the EU on 31 October 2019.

This would also place employers in a difficult position if they wanted to offer an EEA or Swiss national who is not currently in the UK a job to commence after 31 October 2019 as it was now unclear whether that person will be able to work in the UK.  It’s worth noting that the position for Irish nationals is different – they will still be able to come to the UK to live and work. 

Government backtracks - announcement 4 September on new no deal Brexit immigration plans

However, it is now clear that the Government has backtracked on its plans to end free movement straight after Brexit.  As such, EU free movement will formally end immediately after Brexit day if there is a no deal exit from the EU, but EEA and Swiss nationals would still be able to freely enter the UK – just under UK law rather than EU law.

The Government has now stated:

  • After Brexit day, even if there is no deal, EEA and Swiss citizens will be able to live, work and study in the UK as they do now until 31 December 2020;
  • If there is no deal, EEA or Swiss citizens who enter the UK after Brexit day but before 1 January 2021 and wish to continue to live, work and study in the UK after 31 December 2020 must apply for European Temporary Leave to Remain (Euro TLR) by 31 December 2020;
  • Euro TLR will be a temporary immigration status granted for a period of three years, running from the date of grant;
  • The application will be online,  free of charge and require identity, security and criminality checks;
  • Individuals will receive a digital status but will continue to be able to evidence their right to work and rent property using their passports or national identity cards until 31 December 2020;
  • EU and Swiss nationals wishing to stay in the UK after their three year Euro TLR expires will need to apply to switch into a suitable immigration category under the future immigration system or will have to leave the UK; and
  • If individuals qualify to stay in the UK under the future system in a route that leads to settlement, time spent in the UK with Euro TLR status will now count towards the qualifying period for settlement.

Leaving the EU with a deal

If there is a deal, EEA and Swiss nationals will continue to be able to come to the UK freely until 31 December 2020 and will be able to apply under the EU Settlement Scheme. They will have until 30 June 2021 to apply under the Scheme.

Right to work checks

The Government’s announcement also clarifies that employers will not be required to carry out additional immigration or right to work checks on EEA or Swiss nationals until January 2021 (other than seeing and copying their passport).  

Comment

It didn’t take long for the first U turn from the new government in relation to immigration policy.  The new guidance does however provide welcome clarification that EEA and Swiss nationals will continue to be able to come to the UK until 31 December 2020, even if there is no deal. It is also welcome news that time spent with Euro TLR counts toward time spent for the purposes of obtaining ILR

As the guidance states that Euro TLR will be granted for three years from the date of grant, if there is a no deal Brexit, it appears EEA or Swiss citizens arriving after Brexit day may wish to wait and apply for their Euro TLR in late 2020. This is so that the three years Euro TLR starts to run from as late as possible in the transition period.  However, time spent in the UK prior to obtaining Euro TLR is unlikely to count towards ILR and applicants applying late in 2020 may risk delays and IT issues if there is a rush of last minute applications just before the 31 December 2020 deadline.

However, it is also worth bearing in mind that those EEA and Swiss citizens who obtain Euro TLR may not know whether they would be able to remain in the UK at the end of it. This is because we do not yet know the details as to what the future immigration system will look like. It’s very much still watch this space.

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