No deal Brexit: no immediate end to free movement

Employers employing EU/EFTA nationals may have been concerned by recent press reports suggesting that freedom of movement will “end overnight” if the UK leaves the EU without a deal on 31 October. These reports led to the Home Office issuing a factsheet attempting to clarify the position and reassure those who are already here that nothing has changed. Despite Boris Johnson’s assertions that we will be leaving the EU on 31 October come what may, current events in Parliament mean that we still do not know whether we will be leaving on that date and whether we will be leaving with a deal or no deal. As ever, the situation is changing by the day and needs to be kept under constant review.  

The position for EU/EFTA nationals in the event of a no deal departure is as follows:

Residing in the UK before Brexit

• Eligible EU/EFTA nationals and their family members wishing to remain in the UK following a no deal Brexit must apply for either settled or pre-settled status under the EU Settlement Scheme. This scheme has been fully operational since March 2019  
• EU/EFTA nationals intending to be the main applicant must enter the UK by the day we leave the EU. The overall deadline to apply under the scheme is 31 December 2020

This is the position agreed under Theresa May's Government and the Home Office factsheet confirmed nothing had changed. The factsheet also confirmed that:

• No one who is eligible to apply under the scheme, but has yet to apply, will be prevented from re-entering the UK if they are abroad at the time of a no deal Brexit 

Arriving in the UK after Brexit 

The fact sheet appeared to indicate that the position for those arriving in the UK after Brexit was under review. Further guidance published on 5 September confirms the updated position for EU/EFTA nationals moving to the UK after Brexit. 

• EU/EFTA nationals arriving to the UK after a no deal Brexit will still be able to live, work and study in the UK as they do now until 31 December 2020 
• EU/EFTA nationals will be able to prove their right to work in the UK as they do now, by producing their EU/EFTA passport or identity card until 31 December 2020
• Any EU/EFTA national arriving after a no deal Brexit will be able to apply for voluntary European Temporary Leave to Remain, now re-named as ‘Euro TLR’ if they wish to
• The deadline for applying will be 31 December 2020
• The application will be free of charge and will be a digital status
• Euro TLR will be valid for three years and the Government now says it will count towards permanent residency in the UK
• At the end of the three year period, or earlier if they wish, they will need to apply under the new immigration system once it is finally in place (subject to meeting the relevant eligibility requirements)
• EU/EFTA nationals who do not hold Euro TLR will need to apply under the new immigration system by 31 December 2020 if they wish to remain in the UK beyond that date 

Given that EU/EFTA nationals (and their eligible family members) arriving to the UK after a no deal Brexit will still be able to live, work and study in the UK as they do now until 31 December 2020 this certainly does not constitute the ‘overnight end of free movement’ and so should alleviate the concerns of many.

What should EU/EFTA nationals resident in the UK before Brexit be doing now?  

As a precautionary measure we recommend that all eligible EU/EFTA nationals and their family members submit their applications for settled or pre-settled status prior to the current exit date of 31 October 2019 (or any subsequent exit date), even though the factsheet states that the deadline for applications will remain at 31 December 2020. 

For more detailed information about the position of EU/EFTA nationals please contact Anita de Atouguia, Victoria Burnip or any member of the Doyle Clayton business immigration team.