Home Office releases policy paper for no deal Brexit arrangements for EU citizens and European Temporary Leave to Remain

In a sign that the government is ramping up its preparation for a no deal exit from the European Union, the Home Office has released new policy guidance in the event the UK leaves the EU with no deal in place.

The latest policy guidance sets out the proposed arrangements for EU citizens to enter the UK after the 29 March 2019 and covers entrance for family visits, tourism, study and work.

Published on the 28 January 2019, the Home Office guidance states that the UK will not be bound by the implementation period arrangements agreed with the EU and contained in the draft Withdrawal Agreement. Instead, it is said that the government will end free movement of EU citizens as soon as possible through the passing of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill by Parliament. top London immigration solicitors advise that if the Bill is enacted it will repeal the Immigration (European Economic Area) Regulations 2016. The 2016 regulations are the authority for free movement in UK law.

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The Home Office policy guidance reiterates that, in the event of no deal Brexit, EU citizens and their family members who are already resident in the UK on the 29 March 2019 will have until 31 December 2020 to apply for settled status under the EU settlement scheme.

The best London immigration solicitors are recommending that resident EU citizens and their family members take legal advice on their settlement and Immigration options and not wait until December 2020 to consider their routes to settlement in the UK.

The government is committed to ending the free movement EU citizens currently enjoy with effect from the 30 March 2019.

The top London immigration solicitors advise that the new Home Office policy guidance states that EU citizens and their family members who enter the UK with effect from the 30 March 2019 will be admitted under UK Immigration rules. Accordingly, EU citizens will require permission to enter or remain in the UK.

As EU citizens will lose the EU right to free movement in the UK, if after the 30 March 2019, they do not comply with the new Immigration rules they will be classed as illegal entrants. That means they could be liable to enforcement action. The best London immigration solicitors advise that with a no deal Brexit the difference in treatment of EEA and non-EEA citizens applying to enter the UK will be largely extinguished following the termination of EU free movement law.

The Home Office provided details of its proposed skills-based Immigration system for EEA and non-EEA citizens in its December 2018 white paper. The latest information from the government is that it will take time to commence the new Immigration policies and, in the meantime, EU citizens who are currently resident in the UK should secure settled status under the EU settlement scheme.

The Home Office has acknowledged the importance of giving enough time for current EU citizens living in the UK to obtain settled status prior to implementing the new skills-based Immigration system. That is because of concern about the impact of the new Immigration scheme on UK employers as well as educational establishments and landlords. It is doubted whether they have the resources to try to distinguish between EU citizens with settled status, EU citizens who could apply for settled status but have not done so and EU citizens who entered the UK after the 29 Mach 2019.

Accordingly, the government has said that transitional arrangements for EU citizens will apply from 30 March 2019 until 31 December 2020.

The best London immigration solicitors advise that it should be business as usual for tourists and business visitors. That will be some relief to those in the tourism industry and those travelling for business purposes. EU citizens coming to the UK for short visits of up to three months will be able to enter the UK, as they currently are able to do without the requirement for a visa and using e-gates at airport passport control when using a biometric passport.

top London immigration solicitors say that one difference that will apply is that after Brexit EU citizens will be subject to the UK deportation threshold for criminality and conduct.

As part of the transitional provisions in force until 1 January 2021, if an EU citizen wants to remain in the UK for longer than three-months they will need to make an application to UK Visas and Immigration for “European temporary leave to remain”. The application will have to be made within three months of arrival in the UK. A fee will be payable. EU citizens will not be eligible to apply for European temporary leave to remain if they are a serious or persistent criminal or pose a threat to national security.

Home Office guidance says that if an EU citizen passes all necessary identity, criminality and security checks then they will be granted European temporary leave to remain for 36 months from the date of their application. During that period, the applicant will be able to work and study.

top London immigration solicitors emphasise that the European temporary leave to remain for 36 months is non-extendable. If an EU citizen wants to stay longer than 36 months, then they need specialist Immigration advice on their visa options to remain legally in the UK. This is because the Home Office has said that European temporary leave to remain is, as its name suggests, temporary and will not lead to Indefinite Leave to Remain or eligibility to apply for settled status under any extended settlement scheme.

Until the end of December 2020, UK Visas and Immigration will not ask employers, educational establishments, private landlords, or other third parties to try to distinguish between EU citizens who were resident in the UK prior to Brexit and those who arrived after March 2019. Until 2021, EU citizens will able to prove their right to work and to rent property using their passport or national identity card. Non-EU family members can use a biometric residence document to prove their rights.

However, after the new Immigration system is brought into force in early 2021, employers and other third parties will be legally obliged to check EU citizens’ Immigration status. The important point to note is that retrospective checks will not be required. The best London immigration solicitors are recommending that employers start to put systems in place now so that by early 2021 they are ready to carry out checks on all EEA and non-EEA migrant workers.

After Brexit, if an EU citizen travels to the UK and is accompanied by or is joined by close family members who are non-EU citizens, then the non-EU family member will need to apply in advance for a family permit. Close family members are defined as a spouse, partner or dependent child who is aged under 18.

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