Immigration in the Brexit scenarios: What could happen?
In light of the UK Government’s recently published guidelines for EU citizens in the case of a no-deal Brexit, Senior Consultant at Abbiss Cadres Jonathan Martin takes a look at the possible options and how immigration may change under each outcome.
What do we know?
Whilst it is still unclear how Brexit will play out, there has been some clarification around immigration between the UK and EU:
- Currently, we know what the guidance is regarding immigration for EU Nationals coming into the UK in the event of a no-deal Brexit. The policy paper published by the UK Government on 28 January 2019 states that if there is no deal, the UK will: “seek to end freedom of movement as soon as possible through the Immigration and Social Security Contribution (EU Withdrawal) Bill”.
- However, the UK still plans to allow EU citizens to come in and out of the UK without a visa for short visits of under 90 days.
- Provided the UK sticks to this plan, the EU has agreed in a proposed new Regulation to allow UK citizens to travel to the Schengen countries visa-free for short visits.
- We also know that whether we leave with or without a deal, EU nationals and their families will need to apply to stay in the UK through the EU Settlement Scheme.
Whatever is going to happen with Brexit, it makes sense for EU nationals and the companies that employ them to take advantage of the current Regulations which are more generous than what will replace them. As a consequence, we suggest you strongly encourage those of your clients who employ EU citizens to take action now.
As it stands, there are three possible options for the UK. Firstly, we will leave with a deal on 29 March 2019, or on a later date. Secondly, we may leave without a deal on 29 March 2019 – a ‘hard’ Brexit. Thirdly, we may not leave at all.
Leaving the EU with a deal
Whether we leave with a deal on 29 March 2019 or on some later date, we already know the consequences this will have for EU nationals. All EU nationals and their families will have to apply under the EU Settlement Scheme.
Until we leave the EU, the current Rules apply which say that EU citizens can be lawfully in the UK, provided they are workers or job-seekers, students or persons who are self-sufficient. If they are in the last two categories then they all require private health insurance. EU citizens in the UK on any of these bases are exercising treaty rights and are known as qualified people. Any qualified person can also have their family members with them, even if the family members are from outside Europe. If qualified persons and their families have been in the UK meeting those requirements continuously for five years they can qualify for permanent residence. Once they have held permanent residence for a year they can apply for British Citizenship.
Companies also have freedom of movement in a similar way to individuals. They can set up in any EU state and are entitled to move their employees here even if they are not European. These are known as posted workers. For example, an Italian company can establish themselves in the UK and can then post their Chinese, Brazilian and Indian workers here.
Once the UK leaves the EU, the UK Government will have already established the EU Settlement Scheme (the ‘Scheme’). Although the rules are changing, freedom of movement will not end immediately and EU nationals and their family members will still be able to come to the UK on the same terms until 31 December 2020. However they will have to apply under the Scheme.
The Scheme has introduced a change in terminology. The current Regulations mean individuals have Residence Cards valid for five years or Permanent Residence. Under the Scheme, EU Citizens will be granted ‘pre-settled status’ which is for those who have been in the UK for up to five years and ‘settled status’ for those who have been here for five years or more.
The EU Settlement Scheme has been trialled and the Home Office announced that from 21 January 2019, EU citizens and their non-EU citizen family members are able to take part in the public test phase of the Scheme. All EU citizens and any non-EU family members must submit a settlement application prior to 30 June 2021. Only individuals who have begun living in the UK on or before 31 December 2020 are eligible to submit an application.
We also know that from 1 January 2021 the UK Government’s proposals in the recently published Immigration Bill are that EU citizens will have to satisfy the same Rules as citizens from outside the EU. The Rules are being changed to introduce new categories of seasonal and short term work.
A further change is that under the current Regulations, EU citizens are better protected against removal. So whereas providing false information or having criminal convictions are used against non-EU migrants to refuse permission to remain, they are generally not an issue for EU nationals unless the convictions are for serious offences. After the transition period, from 1 January 2021, EU nationals will have to answer the same questions about convictions as other migrants.
If the UK just left the EU on 29 March 2019 without a deal, then freedom of movement would end immediately and so any new entrants to the UK would have to meet the requirements of the Immigration Rules. For the EU nationals and their families already in the UK, the Government has confirmed that if the UK does withdraw from the EU without a deal, this will not affect the Settled Scheme or the rights of individuals who have already been granted settled or pre-settled status. However, applicants must be resident in the UK by 29 March 2019 rather than 31 December 2020, and applications must be submitted by 31 December 2020. However, it is likely that there will have to be swift moves from the Government on a number of fronts and it is possible that things will change quickly.
In the case that the UK Government implements the Immigration and Social Security Contribution Bill, they have put forward the following proposals, published in a policy paper on Monday 28 January 2019, that are subject to parliamentary approval:
(All of the arrangements described below for EU nationals also apply to EFTA state citizens)
Movement in and out of the UK
- As of 30 March 2019, once free movement has ended, any EU citizens and their family members arriving in the UK require permission to enter or remain under UK immigration rules. Those who do not hold valid immigration permission may be liable to enforcement action. The UK Government published the UK’s future skills-based immigration system on 19 December 2018.
- Visiting the UK as a tourist or business visitor will not be any different, despite the underlying legal framework changing. EU citizens will be able to enter the UK as they can today for short-term visits of up to three months, and will not need a visa. Short-term visitors are also permitted to work or study.
- The EU has agreed in a proposed new regulation to allow visa-free visits of up to 90 days in any 180 days to the Schengen countries for UK citizens. This is based on the idea that the UK would reciprocate this.
- The initial three months’ leave to enter the UK will be free of charge for EU citizens. After, application fees will be payable. These fees have not yet been set out.
- Those who wish to stay for longer than three months must apply for European Temporary Leave to Remain. They will then be granted to stay for 36 months, subject to identity, criminality and security checks.
- If EU citizens wish to remain in the UK for longer than 36 months, they must apply under the new immigration system that comes into effect as of 1 January 2021, details of which have not yet been published
- Those who do not qualify under the new arrangement need to leave the UK as soon as their leave expires.
- EU citizens who arrive on or after 30 March 2019 may bring their close family members who are third country nationals, provided they have applied in advance for a family permit.
- Irish citizens will continue to have the right to enter and live in the UK.
It is reassuring to know that the only thing there is a majority for in Parliament at the moment is that the UK should not leave without a deal and therefore it seems that this is the least likely outcome.
In the event the UK does not leave the EU, then freedom of movement on the same terms will continue. While there may be an overhaul of the UK’s Immigration Rules it is unlikely that there would be any significant changes to the EEA Regulations which govern freedom of movement which means workers, job-seekers, students and people of independent means from the EU and their families will still have the right to come to the UK.
If you have any queries on how these changes will impact you and your clients, contact our team on +44(0)203 051 5711 or email us.