The end of free movement as we know it?

Recent confusing press reports indicating that freedom of movement for EU/EFTA nationals will ‘end overnight’ following a no deal departure from the EU on 31 October 2019 have prompted the Home Office to issue a factsheet attempting to clarify the situation. 

Freedom of movement for EU/EFTA nationals as we know it in the legal sense was always due to end on the date the UK leaves the EU without a deal. Therefore, recent comments by the new Prime Minister, Boris Johnson, and the Home Secretary, Priti Patel, that a new system is to be implemented ending free movement ‘immediately’ if there is a no deal Brexit on 31 October 2019 are, at best, unhelpful. At worst, they have caused unnecessary fear and confusion.

What is the current position in the event of a no deal?

The current position for a no deal, as agreed under Theresa May’s government some time ago, is as follows:

What effect will this have on EU nationals residing in the UK before Brexit? 

Eligible EU/EFTA nationals and their family members wishing to remain in the UK following Brexit are required to apply for either settled or pre-settled status under the EU Settlement Scheme. This scheme has been fully operational since March 2019. 

If the UK leaves the EU without a deal, which the country is now preparing for, EU/EFTA citizens intending to be the main applicant must enter the UK by the day we leave the EU. This is currently set for 31 October 2019. The overall deadline to apply under the scheme in the event of no deal is 31 December 2020. 

The Home Office factsheet confirms this position remains the same.  

The factsheet also confirms that:

• no one who is eligible to apply under the scheme, but has yet to apply, will be prevented from re-entering the UK following a no deal departure if they are abroad at the time  
• EU/EFTA nationals will still be able to enter the UK freely for holidays and short visits from 1 November 2019, following a no deal exit. 

 This does not constitute an immediate overnight ending of free movement. 

What effect does the end of "free movement" have on EU nationals arriving in the UK after we leave the EU?

If we leave without a deal, there will be no transition period as agreed in the Withdrawal Agreement. The transition period effectively extended free movement until 31 December 2020. Under current policy published by Theresa May’s government, any EU/EFTA national arriving for more than three months after a no deal Brexit and before 1 January 2021 (when the new immigration system is expected to come into force) will be required to apply for ‘European Temporary Leave to Remain/ETLR’. This will be valid for three years; may not be extended; and will not count towards permanent residency in the UK. Once the new immigration system is finally in place, they will then need to apply under the new system (subject to meeting the relevant eligibility requirements).   

Some have referred to the ETLR system as essentially an ‘extension of free movement’ until the government is in a position to be able to implement a new immigration system. 

What has actually changed? 

Whilst the above has all been part of Home Office guidance published and agreed for quite some time now under Theresa May’s government, including the new ETLR system which was first published in January 2019, the factsheet does appear to indicate that the ETLR arrangements are now under review by the new government. 

It would seem that there is precious little time now for the government to introduce any new system by 31 October 2019 (assuming we still do leave on this date). However, we will need to wait until the government releases further information. Until then we would advise, as a precautionary measure, that all eligible EU/EFTA nationals and their family members submit their applications for settled or pre-settled status prior to the exit date of 31 October 2019, even though the factsheet states that the deadline for applications will remain at 31 December 2020, as agreed under Theresa May’s government. 

In addition, if EU/EFTA nationals and their family members need to travel outside of the UK after 31 October 2019, we would strongly recommend they carry supporting documents with them to show an Immigration Officer at the UK Border that they have established their employment and residency here prior to our exit date. They could evidence this with a contract of employment (clearly showing a UK work start date before 31 October 2019) and any residency documentation such as a tenancy agreement, utility bills, UK bank account statements etc.

For more information on the EU Settlement Scheme, please contact Anita de Atouguia or any member of the Doyle Clayton business immigration team. Please also make contact for further updates on the future immigration system and the impact of Brexit on employing EU/EFTA workers.