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So where are we now? The proroguing of Parliament has been ruled unlawful. The European Union is growing frustrated with the lack of 'written plans' from the Johnson Government. There is the possibility of another extension of Article 50 and also a possible General Election.
And now it is estimated that 58% of employers have no real knowledge of what will happen in a post-Brexit world when it comes to immigration. Especially if there is a No-Deal Brexit.
As lawyers we always want to provide clarity and so this document is our attempt to provide clear information on what the position is for EU nationals in the event of a No-Deal Brexit.
The position at the moment is that we are still part of the European Union and this will remain the case up until the point that we officially exit the EU. At the moment, the legal date of Brexit is 23:00 (or 11pm) on 31st October 2019.
Up until 23:00 on 31st October 2019, EU nationals are free to relocate to the UK and become resident under the principles of Free Movement. This means that there is no requirement for EU nationals to submit entry clearance or visa applications and they can simply enter on their EU passport or ID card.
For those EU nationals who are resident in the UK (and intend to be resident in the UK past 31 December 2020) there is a specific immigration scheme which such individuals can rely on. This is the EU Settled Status Scheme. If you have been in the UK for 5 years or more by the time 31 December 2020 rolls around then you would be eligible for settled status. This is the equivalent to Indefinite Leave to Remain or Permanent Residence. If you have been in the UK for less than 5 years then you would be eligible for pre-settled status. A grant of pre-settled status would result in a 5 year visa so that you are in position to apply for settled status (even if your 5 year point is after 31 December 2020).
For those EU nationals who are resident in the UK before 23:00 on 31st October 2019, you would have until 31 December 2020 to apply under the EU Settled Status Scheme. Your rights to benefits and access to services would also be preserved.
After 23:00 on 31st October 2019, the UK will not be part of the EU and that will be the end of Free Movement. However, much of Free Movement would actually still remain in place but only under the EU (Withdrawal) Act 2018. This means that EU nationals can still come to the UK without securing pre-approval. Free Movement will remain in place under the EU (Withdrawal) Act 2018 until such a time that Parliament legislates for it to be removed – the anticipated date for this is 31 December 2020.
Firstly, you can still use your EU passport or national ID card to enter the UK without obtaining a visa or pre-approval. Over the next year however, the use of national ID cards as an accepted form of entry will be phased out.
The UK Government has stated that EU nationals looking to enter the UK post-Brexit will not be subject to routine intention testing – so it is as if Brexit did not happen.
But Brexit would have happened and EU nationals looking to reside in the UK long term will need to be aware of their immigration options. The UK Government has announced that those who enter post-Brexit will be entitled to apply for temporary leave to remain (known as Euro TLR). This visa would grant the holder the right to reside in the UK for a period of 36 months. This grant of 36 months will start from the date of visa's issue date.
If an EU national enters the UK post-Brexit and intends to leave the UK before 31 December 2020 then you do not have to apply for Euro TLR. However, if an EU national wants to remain in the UK post-31 December 2020 then you must apply for the Euro TLR visa.
As an example, if a Spanish national enters the UK on 01 November 2019 in order to complete work on a 1 year project, that Spanish national may not see much use in applying for the Euro TLR visa. That would be perfectly acceptable as employers, banks and landlords could simply rely on the Spanish passport when it comes to conducting right to work checks, opening up bank accounts or renting property. However, in October 2020, it becomes apparent that the project will not complete on schedule and the Spanish national may need to be in place for a further six months. At this point, it would be sensible for an application to be submitted under the Euro TLR scheme. The application is submitted in October 2020 and granted in November 2020 meaning that the Spanish national has the right to reside until November 2023 (i.e. 36 months from November 2020, the date of the visa being granted).
The UK Government states that the Euro TLR would act as a bridge for EU nationals who have to remain in the UK after the initial grant of 36 months. The time spent on a Euro TLR would also count towards settlement.
EU nationals seeking entry to the UK post-Brexit could expect the following:
Employers, landlords and banks are required to conduct immigration checks to ensure that an individual is entitled to reside in the UK and therefore entitled to work, live and maintain a current account in the UK. For EU nationals, the provision of a passport or ID card is usually enough to demonstrate a right of residence (and therefore a right to work and access key services).
Post-Brexit, the position will remain the same. Employers, landlords, banks and other third parties will not be required to distinguish between EU nationals who were resident in the UK pre or post Brexit. Checks will only be required once the new immigration system is introduced and even then it will only be required when taking on a new employee, tenant or opening a new bank account. The requirement to conduct a check will not be applied retrospectively.