End of Free Movement after Brexit – should I be worried?

The media was awash yesterday with reports of how the free movement of EU nationals would come to an abrupt end if the UK leaves the EU on 31 October 2019 without a deal. But is this a sudden change of strategy or just confirmation of a long held approach (or both)?  

Key themes

So what (if anything) has changed?

Firstly, the legal right for EEA nationals to travel to the UK under EU law (ie the free movement of people) will end when the UK leaves the EU. This is nothing new and has always been the eventual plan.

The proposals under the seemingly now binned draft withdrawal agreement would have seen an implementation period between the date of Brexit and 31 December 2020 during which time free movement would have continued. A new UK immigration system would then come into force from 1 January 2021 that would have applied to EEA and Non-EEA nationals alike. The previous government acknowledging that such a change in immigration policy would need not only a yearlong consultation but also a period of transition from the old rules to the new system.

However, this implementation period would not apply in the case of a no deal Brexit.

The end of European temporary leave to remain?

In December, a policy paper was produced which set out that in a no deal scenario, EU nationals who were coming to the UK after 31 October 2019 would be able to enter the UK for three months. If they wished to stay beyond this period, they would need to apply for European temporary leave to remain to extend their stay for a period of three years. There would be no restrictions on work or study during the period of their stay (making it different from a Non-EEA visitor). Following the three years the EU national would have to find an alternative route under the new immigration system.

It is this European temporary leave which appears to now have been scrapped under the Home Office’s new approach.

EU nationals living in the UK before 31 October 2019 will continue to be allowed to remain and can apply for settled or pre-settled status under the EU Settlement Scheme.

However, those travelling or moving to the UK after 31 October 2019 now have no idea as to how they go about doing so without breaching conditions of stay (whatever these may be).

With less than 75 days to go:

  • EU nationals eligible to apply under the EU Settlement Scheme who have not done so (because they have until 31 December 2020), and who wish to travel back to the UK after 31 October 2019, currently have no idea how their entry to the UK will be distinguished from an EU national coming to the UK for the first time and whether there will be any practical implications.
  • Employers looking to employ an EU national do not know how they will (or whether they will need to) distinguish whether or not the EU national is eligible to apply under the EU Settlement Scheme and therefore has the right to work or someone who has entered the UK after 31 October 2019 and does not have the right to work, potentially opening the employer up to hefty fines. Similar issues will apply to landlords conducting their own right to rent checks.
  • Employers looking to recruit EU nationals from the EU after 31 October 2019 no longer know how this should be done or whether it is even possible to apply under Tier 2 of the Immigration Rules.  

Click here to read the Home Office’s EU citizens fact sheet.

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of August 20, 2019.