No deal: Free movement to be replaced by… temporary free movement.

Two weeks ago I wrote about the Home Secretary’s plan to end free movement overnight when the UK leaves the EU.

Key themes

See here. It was reported that the previous plans for a temporary leave to remain category to bridge the gap between the UK’s departure from the EU and the introduction of a new immigration system were to be replaced. The replacement plans have now been announced…

The Home Office appears to have reverted to a scheme that is not only broadly similar to the previous one, but also more generous.

Under the proposed new scheme, EU citizens and their family members would continue to be able to move to the UK after 31 October 2019 in the same way that they currently can using a passport or national identity card. Although the use of ID cards is likely to be phased out in 2020. There is now no requirement for those staying longer than three months to make an application.

Instead newly-arrived EU citizens who wish to remain in the UK after 31 December 2020 will need to apply for European Temporary Leave to Remain (“Euro TLR”) in order to stay past 2020. As before Euro TLR will be granted for three years after which the individual will need to apply under the as-yet unknown new immigration system in order to stay. Time spent on the Euro TLR will be counted for future settlement applications under the new immigration system.

The Euro TLR Scheme will be free and will involve an online process and identity, security and criminality checks. 

The position for EU citizens who are resident in the UK before 31 October 2019 is unchanged. Resident EU citizens continue to have until 31 December 2020 to apply to the EU Settlement Scheme.

In 2021, all EU citizens will become subject to the hostile environment and need to demonstrate lawful immigration status in the UK.

Other key aspects of the policy paper are:

  • The Home Office intends to introduce a “tougher UK criminality threshold” for EU citizens who wish to enter or remain in the UK after 31 October 2019.
  • All EU citizens will have to make a customs declaration at port by choosing either the green or the red channel but will be able to continue to use eGates if they have a biometric passport.
  • The Euro TLR Scheme will apply to all EFTA citizens (those of Iceland, Liechtenstein, Norway and Switzerland) but Irish citizens’ rights under the Common Travel Area will remain unchanged.
  • Until 31 December 2020, employers and landlords will not need to distinguish between EU citizens who arrived before 31 October 2019 and those who arrived after this date as checks on the right to work and rent will be done the same as they are now.

Is there finally clarity?

With no way of extending the three year Euro TLR, EU citizens who find themselves unable to switch into the new immigration routes will find themselves in a difficult position. For example, EU citizens in low skilled or low pay roles may struggle to find a route under the new immigration system and so may need to leave their jobs (and the UK) at the end of their three years.

In addition, employers may be unable to keep an EU citizen in a role they have been in for the previous three years if the new immigration system imposes further requirements on the employer to employ a migrant worker (for example, a sponsor licence).

The policy paper confirms that right to work checks will be satisfied by EU passports up until 31 December 2020 and EU nationals continuing their roles will not be required to be checked again after this date.

However, there is an increased risk that these employees will subsequently lose the right to work, either at the end of their three years or because they didn’t apply before the deadline. If the employer has reasonable cause to believe that their employee does not have the right to work in the UK they will be committing a criminal offence.

There will also be concerns for EU students looking to study courses longer than three years with no idea what immigration status (or the requirements) they will need in order to complete the final years of their course.

We are still a long way from the ‘confidence and certainty’ mentioned by the policy paper.

Click here to read the Home Office’s Policy paper: No deal immigration arrangements for EU citizens arriving after Brexit.

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 September 5, 2019.