The Immigration status of EU nationals in the event of "no deal"

Our immigration team consider the recent guidance issued by the Home Office for EU nationals which sets out their options in relation to living, studying or working in the UK if there's a no-deal Brexit. 

EU nationals living in the UK on or before 29 March 2019

In the event of no deal the Government has said that EU nationals who are living in the UK, or who arrive in the UK, on or before 29 March 2019 will still be entitled to make an application under the EU Settlement Scheme.

There are two possible immigration statuses available to migrants who successfully apply under the Scheme:

• Settled status – for those who have lived in the UK for a continuous period of 5 years at the time that they make their application. Once an individual has settled status they will be entitled to stay in the UK indefinitely, provided that they do not leave the UK for more than 5 years once they receive their settled status. 
• Pre-settled status – for those who have not yet lived in the UK for a continuous 5 year period as at the date of their application. This status would entitle the individual to stay in the UK for a further 5 years from the date they receive pre-settled status, after which time, they can apply for settled status. 

In the event of no-deal EU nationals would have until 31 December 2020 to make their applications under the EU settlement scheme, whereas in the event of a deal they would have had until 30 June 2021.

EU nationals arriving in the UK after 29 March 2019

In a no-deal scenario, EU nationals arriving in the UK from 30 March 2019 will have the right to visit, to study, to work or to join family in the UK, without the need for a visa, for up to three months. 

If an EU national wishes to remain in the UK for more than 3 months, they will need to apply for European Temporary Leave to Remain. This application will need to be completed online, within the first 3 months that the EU national enters the UK.  A fee will be payable, but the Government has not yet confirmed what that fee will be.  Non-EU family members will be able to join EU nationals – they will require a family permit to do that.  Details of the requirements for that have not yet been published.

European Temporary Leave to Remain will entitle an EU national to remain in the UK for 36 months from the date of their application. If they then wish to remain in the UK after that period, they will need to make an application under the new immigration system which will come into effect around 1 January 2021. If such an application is unsuccessful, the EU national will have to leave the UK upon the expiry of their European Temporary Leave to Remain.  

Importantly time spent in the UK with European Temporary Leave to Remain will not count towards the time required in the UK for an application for indefinite leave to remain (i.e. permanent residence).

Irish nationals and nationals from the wider EEA and Switzerland

In the event of no-deal the position of Irish nationals will not change as they have the right to live and work in the UK as a result of the Common Travel Area between the UK and Ireland.  Irish nationals will be able to make an application under the EU Settlement Scheme if they wish to do so, but this will not be a requirement.

Separate, similar, terms are being agreed with the wider EEA (Norway, Liechtenstein and Iceland) and Switzerland.

Comment

Whilst the proposals for EU nationals mean that if there is no-deal EU nationals will not suddenly find themselves in a position where they cannot enter the UK without a visa, which will be welcome news for businesses and individuals, there are lots of unanswered questions about the Government's proposals.  For example:

• how will this impact the obligation on employers to verify that employees have the right to work in the UK?
• will some of the current UK immigration routes that can lead to an indefinite right to remain in the UK be made available to EU nationals – for example, Tier 2?
• how will the Government record when an EU national has entered the UK and when their three months starts?  

We will monitor these issues and report on any developments in future updates.