Out-Law News 3 min. read

UK sets out no deal EU migration transitional arrangements

The UK government has confirmed that EEA and Swiss nationals ('EU nationals') resident in the UK before 29 March 2019 will be able to apply for either settled or pre-settled status under the EU Settlement Scheme until 31 December 2020 in the event of a no-deal Brexit.

A new Immigration Bill, which is currently before the UK parliament, will repeal the 2016 Immigration (EEA) Regulations, therefore ending the existing free movement to the UK for EU nationals.

However, newly-arrived migrants who arrive between 30 March 2019 and 31 December 2020 from the EU will be entitled to apply for time-limited permission to live, work and study in the UK, even in the event of a no-deal Brexit, the government has said.

The UK government has proposed that EU nationals will be able to visit, study and work in the UK without having to formally apply for immigration status during this period. They will then be able to apply for a new three-year European Temporary Leave to Remain immigration status within that three-month period. This new immigration status is intended as a transitionary measure for EU nationals, ahead of the entry into force of the UK's planned new skills-based immigration system in 2021.

The new status is not intended for Irish nationals, who will continue to have the same rights to travel to and live in the UK as they do currently.

Corporate immigration expert Euan Smith of Pinsent Masons, the law firm behind Out-Law.com, said that the plans would be tentatively welcomed by UK employers.

"Businesses may have been alarmed by the announcement from the home secretary that in the event of a no-deal Brexit he will bring an end to free movement as soon as possible," he said. "However, businesses will be relieved to learn that, rather than removing the ability for EU nationals to come to the UK to work and study, the new UK immigration rules will in fact provide a way for this to happen - and in a way which is more generous than might have been expected."

"The ability for new arrivals to obtain a leave that enables them to remain and work in the UK for up to three years if they arrive in the UK between 30 March 2019 and 31 December 2020 will therefore be welcome. It would therefore seem possible for new EU arrivals in December 2020 to still be in the UK and working until December 2023 with the new European Temporary Leave to Remain," he said.

"At the moment, we have no specific details of the new immigration arrangements that will apply from 2021 other than proposals set out in the white paper published in December. However, the potential ability for EU nationals who hold European Temporary Leave to Remain status to move into a relevant category under the new border and immigration system in force from 2021 could also be helpful for some employees and employers," he said.

"The government has stated that employers will not be asked to start distinguishing between EU nationals who have just arrived and those who were resident before Brexit when carrying out right to work checks. This may appear helpful but it does not take account of the fact that the ability of individual EU employees, in a post-Brexit UK, to remain living and working in the UK will vary depending upon their exact status. The government may yet provide further guidance when the detail is fully developed," he said.

Individuals granted European Temporary Leave to Remain status will be able to stay in the UK for 36 months from the date of their application. They will not be able to apply for an extension, and the status will not result in indefinite leave to remain or lead to status under the EU settlement scheme. Individuals who wish to stay in the UK for longer than 36 months will need to apply for an immigration status under the planned new skills-based immigration system once it comes into effect from 1 January 2021.

Applications for European Temporary Leave to Remain status must be made within three months of arrival in the UK. A fee will be payable, which will be confirmed at a later date. Applications must be made online, and applicants will be required to prove their identity and declare any criminal convictions during the application process.

Those granted European Temporary Leave to Remain status will also be able to bring immediate family members who are EU nationals to the UK. Family members who are not EU nationals will need to apply in advance for a family permit.

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