January 29, 2019

Brexit: The Immigration Bill - The end of Free Movement in the event of No Deal

The Government's announcement on 28 January 2019 brings some clarity to the UK Immigration framework for EU nationals entering the UK after 29 March 2019 in the event of No Deal. Significantly, we now have confirmation of the transition period for those entering post 29 March 2019 (until 31 December 2020), and the steps and status which such EU nationals and non-EU family members will need to take - although an important proviso is that this is subject to parliamentary approval.

Key points applicable only to those entering the UK post 29 March 2019 and before the end of the transition period include:

  • For stays beyond three months, EU nationals will be required to apply for European Temporary Leave to Remain (ETLR). Applications must be made within 3 months of entry and will be granted for a maximum non-extendable period of 3 years. Permission to remain under ETLR will not itself accrue the right to Settled Status, and will be subject to an as yet undecided fee. Upon expiry of the 3 year period, EU nationals will need to be transitioned into the post 1 January 2021 Immigration framework. Such applications will fall outside the EU Settlement Scheme
  • Eligible non-EU family members will need to apply for a Family Permit to accompany the EU national which will be issued in parallel to the 3 year ETLR period granted to the EU national
  • Nationals of EFTA states (i.e. Switzerland, Norway, Iceland and Lichtenstein) will be subject to ETLR requirements but Irish nationals will remain exempt
  • From a Right to Work (RTW) perspective, until the end of the transition period, UK employers will not be required to conduct additional RTW checks to determine whether an EU national arrived pre or post Brexit
  • After 1 January 2021, UK employers will need to undertake RTW checks for EU citizens using the Home Office's Digital Status Checker, but this will not have retrospective effect

Realistically, reciprocal provisions are likely to be imposed by EU and EFTA States on UK citizens entering those territories in the event of No Deal.

The fact that these No Deal provisions are subject to Parliamentary approval is significant, particularly given the present chaos on all key Parliamentary Brexit votes. Clearly all parties recognise that the optimum will be to achieve a Deal rendering the above framework irrelevant. In that case, the EU Settlement Scheme would apply as envisaged by the draft and much maligned Withdrawal Agreement.

If you would like to discuss further, please contact Jonathan Chaimovic, Tim Richards or your usual contact.