Brexit Deal or No Deal: What are the implications for EU Nationals?

Given the current Parliamentary discord over the UK’s position over Brexit, it is useful to consider the UK Immigration implications for EU nationals for both the “deal” and “no deal” scenarios as set out below.

Deal

  • EU nationals can continue freely to move to the UK to live and work until 31 December 2020 and their qualifying “close family members” can join them in the UK. They will be able to stay in the UK beyond this date but they will need to apply for either “Pre-Settled Status” or “Settled Status” as set out below.
  • “Pre-settled status” allows EU nationals and their qualifying “close family members” who have not yet accrued 5 years’ “continuous lawful residence” in the UK (in qualifying categories), by 31 December 2020, to continue to live in the UK for up to a further 5 years. Once they have accrued 5 years’ “continuous lawful residence” (in qualifying categories) in the UK they can convert to “Settled Status”.
  • “Settled Status” allows EU nationals and their qualifying “close family members” who have accrued 5 years’ “continuous lawful residence” (in qualifying categories) in the UK to stay in the UK indefinitely. Eligibility for “Settled Status” is based on residence and not on the exercise of Treaty Rights, unlike its predecessor, Permanent Residence. Individuals with “Settled Status” may then be eligible for British Citizenship in future. Certain other rights and access to benefits follow from holding “Settled Status”.
  • An individual will need to hold “Settled Status” for 12 months before being eligible to naturalise as a British Citizen (should they wish to). “Settled Status”, unlike “Permanent Residence”, cannot be backdated to the precise date that 5 years’ continuous lawful residence was accrued. So, anyone who is currently eligible to apply for confirmation of Permanent Residence, which is capable of being ‘backdated’ to the precise date on which Permanent Residence was acquired, and who wishes to expedite submission of a British Citizenship application, should submit their Permanent Residence application as soon as possible [during the Transition Period individuals may choose whether to obtain a document certifying permanent residence under existing EU law or apply for Settled Status under the new regime].
  • Applications for “Pre-Settled Status” or “Settled Status” need to be made by 30 June 2021 (this accounts for a 6 month ‘grace period’ following the end of the Transition Period on 31 December 2020). The application system is currently open on a live trial basis and will be fully open from 30 March 2019. If applying after 30 March 2019 there will be no application fee (and fees paid prior to this date will be refunded).

No Deal

In the event of no deal, “Pre-Settled” and “Settled” status for EU nationals and their family members will be as set out above but with the following changes:

  • EU Nationals and accompanying family members must be resident in the UK before 29 March 2019 in order to obtain Pre-settled or Settled status (although they will nevertheless have almost two years to document such status). Qualifying ‘Close family members’ who are not resident in the UK by 29 March 2019 will be able to apply to join their EU family member in the UK
  • Applications for “Settled Status” and “Pre-Settled Status” must be made by 31 December 2020 (not 30 June 2021).
  • The new UK Immigration system (which will apply to EU nationals and non-EU nationals) will apply from 1 January 2021.
  • Between 30 March 2019 and 1 January 2021, EU nationals who wish to travel to the UK will be able to travel to the UK freely for work, study and residence for up to 3 months. If the individual then wishes to stay in the UK beyond 3 months, they will be required to apply for European Temporary Leave to Remain (ETLR) from within the UK. This application will involve an ID and criminal record check. Their non-EEA family members will require a Family Permit before travelling. Individuals with ETLR will ostensibly have the right to work in the UK (see below). Applications for ETLR must be made within 3 months of entry and will be granted for a maximum non-extendable period of 3 years, following which they will either need to leave the UK or they will need to “switch” into another visa category (under the post 1 January 2021 UK immigration system (see below)) in order to stay in the UK. ETLR will not lead to “Settled Status” or indefinite leave to remain. It remains to be seen whether it will be possible to combine time spent in the UK under ETLR with time spent in a new visa category (under the post 1 January 2021 UK immigration system) in order to obtain “Settled Status” or indefinite leave to remain in the future, in the event of a “no deal Brexit”.
  • Before 1 January 2021, employers will not need to conduct additional right to work checks to determine whether an EU national arrived pre or post 29 March 2019. It seems on this basis that EU nationals arriving between 30 March 2019 and 1 January 2021 will ostensibly be able to work freely in the UK (although they will be personally responsible for obtaining ETLR within three months of entry). From 1 January 2021, employers will need to verify that EU nationals hold an appropriate visa which permits them to work in the UK.

New UK Immigration Rules

The Government published its White Paper on the UK’s future immigration system in December 2018. The new UK immigration system is intended to come into force on 1 January 2021. The main points for EU nationals are:

  • EU nationals and their family members will require the appropriate visa to live and work in the UK from 1 January 2021.
  • EU nationals should be able to enter the UK as a visitor, without a visa, for up to 6 months. They will also be able to use the “e-gates” at the border.
  • EU nationals who are aged between 18 and 30 may be eligible to apply under the Tier 5 Youth Mobility scheme to come to the UK for 2 years to work or study.
  • The current Tier 2 (General) system will be liberalised. The indications in the White Paper are that the resident labour market test may well be abolished, as may the yearly cap on Tier 2 (General) migration. The requisite skills threshold for the visa may be reduced from RQF level 6 to RQF level 3 – 5 which will theoretically enable lower skilled workers to be sponsored but if a minimum salary requirement (currently £30,00 although consideration is being given to lowering this) is retained this may render sponsorship unfeasible.
  • A temporary immigration route may be introduced for short term work of up to 12 months at any skill level.
  • Post study leave permissions may be expanded.
  • There may also be liberalisation to the Tier 1 (Entrepreneur) category (to be replaced with an “innovator” category) and a “start up” visa route may be introduced. The Tier 1 (Exceptional Talent) programme may be expanded. This may be beneficial for self-employed EU nationals.

All of the above is subject to Parliamentary approval and is subject to change. The “deal” or “no deal” arrangements also require reciprocity from EU counterparts for UK nationals living there. Like everyone else, we will be “watching this space”!

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© SA LAW 2019

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.

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