News added on 11.02.2019

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Migrant workers

The immigration rights of EU nationals on a deal or no-deal Brexit

The government has now confirmed that, in the event of a no-deal Brexit, EU nationals coming to the UK on or after 30 March 2019 who want to live and work here for more than three months will have to apply for European Temporary Leave to Remain. What does this mean for employers of EU nationals if there’s no deal and how is the position different if there is a deal?

Regardless of whether there’s a Brexit deal or not, the UK government is committed to ending free movement for EU nationals once the UK has left the EU - having a deal in place will simply affect the date that this will happen.

Whether there’s a deal or not, EU nationals already living in the UK on 29 March 2019 will be eligible to apply for settled status under the EU Settlement Scheme once they’ve been continuously and lawfully resident here for five years. In the interim, they can apply for pre-settled status to cover the period until they’ve accumulated five years. The EU Settlement Scheme is due to be fully open by 30 March 2019 and applications will be free (the original proposal to charge a £65 application fee has now been revoked). If there’s a Brexit deal, they’ll need to apply for the new status by 30 June 2021; if there’s no deal, this deadline date will be brought forward to 31 December 2020. Settled status will allow EU nationals to live and work in the UK indefinitely and they can go on to apply for British citizenship if they wish.

Where the position really diverges between deal and no deal is in relation to EU nationals arriving in the UK between 30 March 2019 and 31 December 2020. If there’s no deal (and subject to Parliamentary approval):

  • there will be no transition period, free movement of EU nationals will effectively end from 30 March 2019 and temporary rules will instead apply
  • under these temporary rules, EU nationals will be able to come to the UK for up to three months to visit, work or study without applying for a visa
  • however, EU nationals will need to apply to the Home Office for “European Temporary Leave to Remain” (ETLR) if they wish to stay in the UK for more than three months and they will need to apply within three months of entry
  • ETLR will be valid for a maximum of three years and will allow work and study - but it will be non-extendable and will not lead to indefinite leave to remain in the UK
  • applicants for ETLR will be subject to identity, criminality and security checks and they will also have to pay an application fee, the amount of which has not yet been announced
  • at the end of the three-year period, EU nationals who wish to remain in the UK to work or study will not be able to obtain settled status under the EU Settlement Scheme; instead they will need to qualify for a visa under the UK’s future new immigration system that will take effect from 1 January 2021 (see below) - those who don’t qualify, which is likely to include most low-skilled workers, will need to leave the UK when their ETLR expires.

However, if there’s a deal:

  • a transition period will run until 31 December 2020 and free movement of EU nationals will continue during this period, meaning they will have the right to live and work in the UK
  • any EU nationals arriving in the UK between 30 March 2019 and 31 December 2020 will therefore still be eligible to apply for pre-settled and then settled status under the EU Settlement Scheme (they also will be required to register if they choose to stay here for longer than three months).

The position in relation to EU nationals will also apply in respect of nationals of Switzerland and the EFTA states, i.e. Norway, Iceland and Liechtenstein. Irish citizens don’t need to apply for ETLR or obtain settled status.

A new skills-based immigration system, to be consulted on throughout this year and therefore yet to be finalised, will apply to all foreign migrants, including EU nationals, from 1 January 2021.

As for conducting right to work checks on new recruits, EU nationals will be able to rely on their passport or national identity card to evidence their right to work in the UK until 31 December 2020, and (whether there’s a deal or not) you won’t be required to differentiate between those already here on 29 March 2019 and those arriving between 30 March 2019 and 31 December 2020. This means that you won’t be required to conduct additional right to work checks to determine whether an EU national arrived pre or post Brexit. After 1 January 2021, different rules will apply.

You can recruit or continue to employ any EU nationals who are already living in the UK by 29 March 2019. They will, however, need to apply for settled status (or pre-settled status if they’ve not yet been here for five years). If there’s a Brexit deal, the same position will apply to any EU nationals arriving in the UK between 30 March 2019 and 31 December 2020 but, if there’s no deal, these EU nationals will need to apply for European Temporary Leave to Remain - valid for three years - if they wish to live and work in the UK for more than three months. From 1 January 2021, a new skills-based immigration system will apply to any EU nationals arriving on or after that date (and, where there’s no deal, to any EU nationals with European Temporary Leave to Remain when that expires). Until 31 December 2020, you can still rely on EU nationals’ passports or national identity cards when conducting right to work checks.

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