Samar Shams, immigration legal expert & Partner at Spencer West, shares with us the latest insights on Brexit & implications for international people in the UK around this time:
The government’s new policy paper on immigration after a no-deal Brexit seems to have been published mostly to reassure EEA nationals living in the UK. The new policy, published on 5 September 2019, does not make a lot of significant changes from the previous guidance on the same topic. Reassurance was needed after media reports of the Home Secretary Priti Patel’s intention to end freedom of movement rights on 31 October 2019 without a transition period.
Ending freedom of movement rights abruptly in that way would be unenforceable, as there would be no way of distinguishing between EEA nationals resident in the UK before Brexit and those arriving afterwards.
EEA families in the UK before Brexit
Most rights of EEA nationals resident in the UK before Brexit will be maintained until 31 December 2020 through UK law. Some changes will be made, including strengthening the UK’s ability to take action against EEA nationals on the basis of criminality. EEA nationals will otherwise still be able to enter the UK using their EEA passports. The government confirmed this in the recent policy paper published on 5 September 2019.
‘Getting stuck’ outside the UK after Brexit day
The retention of most EEA rights means that people will not be stuck outside the UK if they travel and a no-deal Brexit occurs whilst they are outside the UK. Consider as well that EEA nationals moving to the UK after Brexit will still only need to show their passports when they arrive. Please see below for a discussion about moving to the UK after Brexit.
Moving to the UK before Brexit
EEA nationals coming to the UK before Brexit just need their passport or national ID card to enter.
If they arrive in the UK before their non-EEA national family members, they should apply for pre-settled status under the EU Settlement Scheme. Their non-EEA family members can then apply for family permits under the EU Settlement Scheme, to allow them to travel to the UK. Once the non-EEA national family members are in the UK, they too can apply for pre-settled status under the EU Settlement Scheme.
If EEA nationals and their family members will be traveling to the UK at the same time, the non-EEA national family members should apply for EEA family permits, rather than EU Settlement Scheme family permits, to enable them to travel to the UK. All family members can apply for pre-settled status under the EU Settlement Scheme once they are in the UK.
Registration under the EU Settlement Scheme is mandatory
EEA nationals and their family members who are here before Brexit must register for the EU Settlement Scheme by 31 December 2020. Many people still do not know that this is a mandatory registration scheme. Even if Brexit does not happen, some form of registration requirement could be maintained, as mandatory registration is allowed under EEA law.
EEA families coming to the UK after a no-deal Brexit
Where a family moves to the UK after a no-deal Brexit, but before 31 December 2020, the EEA national family members will be able to enter on their passports. Non-EEA national family members will have to apply for EEA family permits before traveling to the UK. Once in the UK, the EEA national family members can apply for European Temporary Leave to Remain and then their non-EEA national family members can do the same.
One positive change introduced in the 5 September 2019 policy paper is that EU nationals and their family members arriving after a no-deal Brexit will have until 31 December 2020 to apply for European Temporary Leave to Remain. Under the previous proposal, EEA nationals had to apply for European Temporary Leave to Remain if they wanted to stay in UK longer than 3 months. Similarly to ending freedom of movement abruptly on 31 October 2019, that policy would have been unenforceable, because there would have been no way of distinguishing between EEA nationals resident in the UK before Brexit who had not yet registered under the EU Settlement Scheme and EEA nationals who arrived after Brexit and remained in the UK longer than three months, without applying for European Temporary Leave to Remain. Both such EEA nationals would have EEA passports as their only documentation, though one would have immigration status and the other would not.
As the name implies, European Temporary Leave to Remain is temporary. It will be valid for 3 years and those wishing to remain in the UK longer will have to apply for another visa type under the future immigration rules. Time spent in the UK under Temporary Leave to Remain will count towards the 5 years’ residence usually required for settlement under other routes. For some people, this means it is better to apply earlier rather than later so you reach the 5-year mark more quickly. For others, it might be better to wait until closer to the 31 December 2020 deadline, to have time to sort out eligibility for the next visa, e.g. by getting your employer to sponsor you for a work visa.
If an extension is sought by and granted to the UK, such that Brexit does not happen on 31 October 2019, it is possible that the 31 December 2020 deadline for registration under the EU Settlement Scheme and for applying for European Temporary Leave to Remain, will be pushed back to a later date. Otherwise, the transition period after Brexit would be very short.
Where a family wants to move to the UK after 31 December 2020, EEA national and non-EEA national family members will have to apply for and be granted visas under the new immigration system. They will likely have to do so before traveling to the UK.
The Immigration White Paper published by the previous government in December 2018, suggested that under the future immigration system, nationals of low-risk countries would be able to travel to the UK as visitors to look for work and then switch into work visa routes. Current freedom of movement rights allow for travel to the UK and three months’ residence before an individual has to secure an extended right of residence which they can do through work. In practice, the future immigration system might operate in much the same way.
If you have any questions or would like assistance making an application, please contact Samar Shams at [email protected].