By Andrew Osborne, Joanna Hunt, Kathryn Denyer

Firm: Lewis Silkin LLP

The UK Government has released new plans clarifying the immigration arrangements that would apply for EU citizens who arrive in the UK after a no-deal Brexit.

On 4 September, the UK Government released its policy paper on ‘No deal immigration arrangements for EU citizens arriving after Brexit’.

This follows the announcement and the subsequent hasty retraction by the Government of their intention to end free movement for EU nationals as soon as the UK has exited the European Union. This caused a great deal of anxiety and panic among EU nationals and the businesses that employ them and led to a spike in applications under the EU settlement scheme. We now have some clarity, which will hopefully reassure EU nationals currently resident in the UK and those arriving in the coming months.

The policy paper confirms that EU citizens arriving in the UK after a no-deal Brexit and before the end of 2020 will be able to enter, live, work and study as they do now. Entry checks on arrival for EU nationals will remain the same as they are now and EU nationals will still be able to use eGates so there should be no additional delays to travel.

EU nationals who arrive after a no-deal Brexit and want to stay beyond the end of 2020 will have the option of applying for temporary leave to remain in the UK. This is being called European Temporary Leave to Remain (or Euro TLR). This will be valid for 36 months and will run from the date of application.

Anyone who has been monitoring Brexit news will notice that this is very similar to the scheme trialled by Theresa May’s Government at the beginning of this year but does differ in some respects.

The key points that we know from the policy paper are:

  • The Euro TLR scheme is voluntary. However, EU nationals and their family members who want to remain in the UK past 31 December 2020 will need to apply for Euro TLR or under the new immigration system that will be place from 1 January 2021 to remain lawfully resident in the UK.
  • The Euro TLR application will be free of charge, simple and involve some criminality checks.
  • Euro TLR will only be valid for 36 months. EU nationals who want to remain in the UK after this point will need to apply under a category within the future immigration system that will be in place from 1 January 2021. They will though be able to amalgamate the time spent on Euro TLR for settlement once they have switched their status. EU nationals who do not qualify under the new rules will be expected to leave the UK.
  • Right to work checks for employers will remain the same until January 2021 so EU nationals can still start work by providing a passport or ID card until this date. Employers are not required to make retrospective right to work checks of EU employees who start work before 1 January 2021. Anyone employed after this date will need to show that they have the requisite immigration permission.
  • ID card as valid travel documents will be phased out from 2020.

This does not affect EU nationals and their family members currently resident in the UK before exit day who will still have until 31 December 2020 to apply for ‘pre-settled’ or ‘settled status’ under the EU settlement scheme.

The new no deal plans are on the face of it more generous than those set out by the May Government. In effect, the proposal creates a transition period after a no-deal Brexit which will run until 31 December 2020, during which time EU nationals will be able to come and live in the UK largely on the same basis as they do now.

What it has the potential to do, however, is create a very confusing situation for EU nationals wanting to regularise their status in the UK to ensure they can be lawfully resident beyond 31 December 2020. There will be three routes available: the EU settlement scheme, Euro TLR and the rules of the future immigration system. An EU national will have to ensure that they have carefully considered which option is relevant to them and that they have the status in time for the deadline. The Government is going to have to publicise the rules of the schemes extensively to avoid EU nationals unwittingly applying late or for the wrong status.

For employers, they have the reassurance that they can continue to employ EU nationals on the same basis as they do now until the end of 2020. They will need to keep in mind that anyone arriving after 31 October 2019 will not automatically be able to stay permanently, so will need to keep an eye on the rules of the future immigration system.

Separately, the Government has commissioned the Migration Advisory Committee (MAC) to review the Australian immigration system and other comparator systems as part of its current work on potential salary thresholds for skilled workers in the post-Brexit immigration system and to report to Government by January next year. The results of this should shape what the rules of the future immigration system may look like.