The UK Government had previously announced their plans to water down the EU Settled Status Scheme in the event of no-deal Brexit. In this scenario, the Scheme would be restricted to those EU nationals who were resident in the UK before 29 March 2019.
However, as the new proposed immigration system would not be in place until 1 January 2021, this left a gap between 30 March 2019 and 31 December 2020 where the treatment of new arrivals from the EU was unclear. They would not qualify for the Settled Status Scheme but would also not be able to apply for a visa under the current immigration system.
On Monday, the Government clarified what will happen to EEA/Swiss nationals from 30 March 2019 in the event of no-deal:
- They will be able to visit the UK as normal and will still be able to use the e-gates as they do now. Visitors are not able to take employment or work and this is in keeping with the rules for non-EU nationals.
- Those who wish to come to the UK for work, study or residence will be able to do so for three months without needing to take any action before or after they arrive.
- Those who wish to remain for longer than three months must apply online for European Temporary Leave to Remain from within the UK, which involves an ID and criminal record check.
- Successful applicants will be granted 36 months' temporary immigration permission to remain in the UK. This status cannot be extended and it will not lead to Indefinite Leave to Remain (ILR) (also known as permanent residence or settlement), although it will provide full work and residence rights.
- Unsuccessful applicants will need to leave the UK - in practice this should only apply to those with fraudulent documents or serious criminal convictions.
- At the end of the European Temporary Leave to Remain, EEA/Swiss nationals will either need to leave the UK or switch into an appropriate visa category under the new immigration system which is due to come into force from 1 January 2021.
- Non-EU family members of EU nationals will be covered by the same provisions but must apply for their permits before they travel to the UK.
The Government is eager to stress that they fully expect a deal to be agreed before 29 March 2019 and, in this case, Freedom of Movement will effectively continue until 31 December 2020 so there will be no need for the European Temporary Leave to Remain category.
A registration requirement is very common across EEA member states and Switzerland. In fact, the UK is unusual in not requiring EEA/Swiss nationals to comply with some form of registration procedure. What is frustrating is that European Temporary Leave to Remain will not lead to ILR, meaning that those EEA/Swiss nationals entering the UK from 30 March 2019 who wish to make the UK their home will have to wait to see if they will be able to switch into another immigration category which does lead to ILR in the future. As the details of the post-December 2020 immigration system are not yet known, this will lead to a huge level of uncertainty for EEA migrants and their employers.
How willing will people be to lay down roots or companies to invest in their staff if they are unsure whether they will be able to stay longer term? For well-paid and high-net-worth individuals, this will not pose a problem as they are well catered for under the current system and the proposed new system. However, lower paid and more vulnerable groups will be left in a more precarious position, as well as the employers who rely on this labour pool, such as hotels, retailers, hauliers and agricultural businesses.
It is possible that, if there is a no-deal Brexit and this system has to be implemented, changes will be made to make it easier for this group of EEA/Swiss nationals to remain in the UK long term. However, for the moment, although this announcement seeks to clarify the position of EEA/Swiss citizens entering the UK from 30 March 2019 in the event of no-deal, it actually creates new uncertainties.