On the same day the House of Commons voted to try and rule out the possibility of a no-deal Brexit, the Home Office released yesterday an updated policy paper on no-deal immigration arrangements for EU citizens arriving after Brexit, currently scheduled for 31 October 2019.

As highlighted in our alertlast month, in a no-deal scenario, EU citizens resident in the UK before 31 October 2019 will be able to continue to reside in the UK and apply under the EU Settlement Scheme. On that basis, our advice is that where possible EU citizens should seek to arrive in the UK by 31 October 2019.

Recent uncertainty on policy

However, since 19 August 2019 when the Home Secretary, Priti Patel, made an announcement that there would effectively be an end to free movement after 31 October 2019, there has been uncertainty and concern in relation to what will happen to EU citizens who arrive in the UK for the first time after 31 October 2019, if there is a no-deal Brexit. Especially, for example, in how EU citizens who have been resident in the UK for many years but not yet registered under the EU Settlement Scheme may gain re-entry to the UK if they travel, and in how employers can distinguish between pre and post Brexit EU citizens for right to work purposes.

Some of the fears were allayed last Sunday when the Sunday Times ran an article suggesting the government had received legal advice against attempting to abruptly end free movement in the event of a no deal.

New policy proposals first announced yesterday

While there are a number of other implications from the new no-deal policy paper released, the key practical aspects for EU citizens arriving after 31 October 2019 in the event of a no deal are:

  • effectively, free movement will continue such that EU citizens can arrive in the UK as they do now and continue to work in the UK for a transition period up to 31 December 2020;
  • employers will not be required to distinguish between EU citizens who moved to the UK on or before 31 October 2019 and those who arrived afterwards;
  • there will be the option for EU citizens arriving after 31 October 2019 to apply for European Temporary Leave to Remain (Euro TLR) granting them a formal immigration status for 3 years;
  • the Euro TLR application is planned to be a straightforward online process which provides the applicant with a digital immigration status and is free of charge;
  • EU citizens who decide not to apply for Euro TLR will need to apply for a different immigration status before 31 December 2020. If they do not or cannot, they must then leave the UK by that date;
  • for those EU citizens who do apply for Euro TLR, they will need to apply under the proposed new immigration system (see below) before their 3 years' leave expires. If they switch status to a category under the new immigration system which leads to settlement (indefinite leave to remain), they can use the time spent with Euro TLR towards that settlement application – normally after a total of 5 years in the UK;
  • the criminality threshold is to be lowered for EU citizens who commit crimes after 31 October 2019; and
  • the Home Secretary has now formally asked the Migration Advisory Committee (MAC) to advise on the possibility of a new ‘Australian style’ Points Based System to be implemented from 1 January 2021.

Unanswered questions

The policy paper raises various unanswered questions, including, to the extent possible, how an EU citizen could decide not to apply for Euro TLR and still transition to the new immigration system if it is only possible to apply on 1 January 2021 at a time when the EU citizen would not have a right to reside in the UK. Plus, the MAC has already recently been asked to report on salary thresholds under the new immigration system and so questions remain in terms of whether the MAC will be able to report back in time to the government as requested by January 2020.

Overall, after the fear generated by the Home Secretary last month, employers will be relieved to see these policy proposals. However, with, at the time of writing, the chance of a snap general election looking more likely, any future government could well change these plans again.