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Home Secretary clarifies immigration system for post Brexit arrivals from EU in no deal, and commissions MAC on Australian style PBS

Written by Seema Farazi, Head of FS Immigration, EY on 04.09.18

To read the original article, click here.

Brexit

A few weeks ago, the Home Secretary, Priti Patel, commented about ‘ending free movement from 31 October’ – this led to widespread concern. Later reports indicated that the Home Secretary was likely to follow a system close to that announced by the previous government. She has indeed done so and today set out her plans for EU nationals arriving in the UK from 1 November 2019 in a no deal exit from the EU – clarifying the position after a week of intense media attention.

  • For a transitional period after Brexit on 31 October 2019 until 31 December 2020, EU citizens and their family members will be able to move to the UK and live, study and work as they do now.
  • Those arriving after Brexit but who wish to stay beyond 2020 will need to apply for a UK immigration status granting them permission to stay.
  • After Brexit, the Home Office will open a new voluntary immigration scheme – the European Temporary Leave to Remain (Euro TLR) Scheme – to provide a route to apply for this immigration status.
  • Applications will involve a simple online process and identity, security and criminality checks.
  • There will be no fee for this application.
  • Successful applicants will be granted a period of 3 years’ leave to remain in the UK, running from the date the leave is granted.
  • EU citizens may choose to use the evidence of this UK leave – in the form of a secure digital status – to establish their entitlements to work and rent property during the transitional period until 31 December 2020.
  • During this period, they will also be able to evidence those rights using their passport or national identity card.
  • If they subsequently qualify for leave under the future immigration system in a route that leads to settlement (indefinite leave to remain) here, an EU citizen who spends time in the UK with a Euro TLR immigration status will be able to accrue that time towards the qualifying period for settlement.

What has changed from the European Temporary Leave to Remain planned by the previous government?

The criminality threshold is expected to be more rigorous. Time spent with Euro TLR will count towards ILR for those who switch into the immigration rules thereafter – this is very good news.

What hasn’t changed?

Those with this status will be able to switch to other categories. EU nationals will be able to evidence their right to work until 31 December 2020 using national passports or ID cards.

What does this all mean?

This is welcome assurance for EU nationals, and for business that their access to EU talent will continue. Those eligible should be encouraged to apply at the earliest opportunity and must apply by 31 December 2020. Otherwise, they will deemed to be in the UK unlawfully and will be liable to enforcement action, detention and removal as an immigration offender.

Employers, landlords and other third parties will not be required to distinguish between EU citizens who moved to the UK before or after Brexit until the new, points-based immigration system is introduced from January 2021.

Until 31 December 2020, checks on, for example, an EU citizen’s right to work or rent, will be undertaken as they are now, and all EU citizens will be able to evidence their rights here using their passport or national identity card. Alternatively, if they wish to do so, an EU citizen will be able to use their digital status, granted under the EU Settlement Scheme or under the Euro TLR scheme, to prove their right to work and other entitlements, via the Home Office’s digital status checking service. This service will enable them to share their digital status securely with an employer or other third party who needs to see it.

When the new points-based immigration system is introduced from January 2021, employers and others will need to check that, in respect of any new recruitment or new provision of service, an EU citizen has a valid UK immigration status, and not just an EU passport or national identity card. This check will be undertaken when that individual applies for a new job, tenancy or bank account for example. It will not be done retrospectively.

How will this impact family members?

EU citizens who move to the UK after 31 October 2019 may be accompanied by their non-EU citizen family members. This includes direct family members (such as a spouse, civil partner or child), and extended family members (durable partners and dependent relatives), as now. They will need to be in possession of a valid national passport and an EEA family permit and will be able to stay in the UK until the end of 2020.

Non-EU citizen family members will be able to rely on a biometric immigration document to prove their entitlements, also via the digital status checking service where they wish to use this.

Close family members (spouses/partners and dependent children under 18) may apply for Euro TLR once their EU citizen sponsor has applied under the scheme. They will apply in the same way as EU citizens and need to provide required biometrics. They will be granted Euro TLR for a period that does not exceed the end date of the Euro TLR granted to their EU citizen sponsor.

Any close family member who does not obtain Euro TLR by the end of 2020, and who does not otherwise have a right to remain in the UK, will be expected to leave the UK at that point.

Importantly, after Brexit on 31 October 2019, there will no longer be a route under EU law for the family members of UK nationals who move to the EU after that date to return with them to the UK. This means that, for UK nationals moving to the EU after Brexit to return to the UK with their non-British, non-Irish family members, the family members will need to meet the UK’s family immigration rules.

The current route reflecting EU law will remain open until 29 March 2022 for existing close family members of UK nationals who were resident in the EU27 before exit.

Could this all change again?

Yes, the system will remain vulnerable to change in the political landscape.

Future immigration system and Brexit

The Home Secretary has also today commissioned the Migration Advisory Committee (MAC), as part of their current work on future potential salary thresholds, to conduct a review of the Australian immigration system and similar systems to advise on what best practice can be used to strengthen the UK labour market and attract the best and brightest from around the world. The MAC is to report back by January 2020.

EU citizens who move to the UK after Brexit who do not hold Euro TLR will need to apply under the new immigration system by 31 December 2020 if they wish to remain here beyond that date.

Those who hold Euro TLR will have a bridge into the new immigration system: if they wish to remain in the UK, they will only be required to apply to the new points-based immigration system when their 3 year Euro TLR leave expires.

They may apply for status under the new system earlier if they wish.

Where an individual who holds Euro TLR does not meet the requisite criteria under the new immigration system or otherwise have a right to remain in the UK, they will be expected to leave the UK when their Euro TLR expires. Euro TLR will therefore only provide a temporary stay in the UK for some EU citizens.

Finally

EU nationals resident in the UK by 31 October 2019 should apply to the EU Settled Status Scheme at their very earliest opportunity. Following media reports that those who have been resident in the UK for longer than 5 years are being denied Settled Status, applicants should be aware that during the online application process, if their 5 year history cannot be verified by the online checks carried out during the live application, they have the opportunity to choose to provide additional documentation to evidence their long residence – rather than accepting pre-settled status.

The views expressed on this site are mine and do not necessarily represent EY’s position.