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Education briefing - The return of European Temporary Leave to Remain – the right for EEA nationals arriving after Brexit to work and study in a no deal scenario

  • United Kingdom
  • Education - Briefings

11-09-2019

Introduction

Whilst the likelihood of the UK leaving the EU without a deal on 31 October 2019 has reduced in the last week, the possibility of a no deal Brexit still remains a very real possibility, be that on 31 October 2019 or at a later date. As a result, the ability of EEA nationals who are not resident as at the date of exit to come to the UK work or study is becoming ever more pressing.

In this briefing we consider the current position in the event of a no deal Brexit. Should a deal be concluded or an election take place prior to exit, different provisions are likely to apply and we will provide updates in future briefings.

On 28 January 2019, the Government published guidance for EU, EEA and Swiss citizens coming to the UK to visit, study, work or join family if the UK left the EU with no deal. This stated that if the UK left in a no deal situation this group of citizens (for ease we will refer to them as EEA nationals in this briefing) could come to the UK as now, but would need to apply for European temporary leave to remain to stay longer than 3 months after the end of free movement and before “the UK’s new skills-based immigration system begins in 2021”. Those granted European temporary leave to remain would be able to stay in the UK for 36 months from the date such leave was granted.

This would provide EEA nationals arriving after exit date some (limited) comfort that could come and work or study in the UK. However, they would not be able to apply for settled status under the EU Settlement Scheme and, upon expiry of the 36 months, would need to leave the UK unless they were entitled to remain under the new immigration rules then in place.

Recent developments - August 2019

Since 28 January 2019 there have of course been many changes, not least the appointment of a new Prime Minister and Home Secretary. It was widely reported in the press on 18 August that, under new Home Office plans, free movement for EEA nationals would end on day one of a no deal Brexit. This led to speculation that the European temporary leave to remain scheme would not now be introduced and the ability for EEA nationals to come to the UK after exit date (potentially 31 October 2019) would be greatly restricted and indeed dependent on a new immigration regime which had not been published and indeed unlikely to be in a workable form for quite some time.

On 19 August 2019 the Home Office, responding to the speculation, issued a “media factsheet” in which it sought to address what it described as “some inaccurate reporting” which “has suggested that, once freedom of movement ends after Brexit, EU citizens resident in the UK will be left in legal limbo”. Whilst this factsheet made it clear that all EEA nationals resident in the UK by 31 October 2019 would have until at least 31 December 2020 to apply for settled status, it went on to state “We are leaving the EU on 31 October come what may. This will mean that freedom of movement as it currently stands will end on 31 October when the UK leaves the EU”.

It also provided little comfort for EEA nationals not resident as at 31 October 2019 as to their rights to come to the UK to work or study – stating that, although they would still be able to come to the UK “on holiday and for short trips”, the arrangements for people coming to the UK for longer periods of time and for work and study would be changing and that “Details of other changes immediately after 31 October and improvements to the previous government’s plans for a new immigration system are being developed”.

This did little to dampen down on the speculation that the proposed European temporary leave to remain scheme was no more and left institutions concerned about how they would be able to recruit EEA nationals to work for or study at their institution in the immediate aftermath of a no deal exit on 31 October 2019. Many immigration experts questioned whether in fact free movement could legally be ended on 31 October 2019, even in the event of an no deal exit on that date, arguing that this only be done by an Act of Parliament and there was unlikely to be the time – or the political will – to pass such an Act before 31 October 2019.

Revised European Temporary Leave to Remain

At the start of September it was reported that the Government had accepted legal advice that it could not just end freedom of movement on 31 October 2019 and impose a new immigration system from that date and UKVI has now published a further policy paper confirming this. Interestingly, the paper says that although free movement as it currently stands under EU law will end on 31 October 2019, Parliament has provided that much of the free movement framework will remain in place under the EU (Withdrawal) Act 2018, until Parliament passes primary legislation to repeal it.

The paper still states that the UK will be leaving the EU on 31 October 2019 but that, in the event that it leaves without a deal, there will be a transitional period until 31 December 2020 during which “law abiding EU citizens and their family members will be able to move to the UK and live, study, work and access benefits and services as they do now”.

This will be done by way of the 36 month temporary immigration status of European Temporary Leave to Remain (now referred to as “Euro TLR”). This is similar to the previous proposal under Theresa May’s administration, in that it would allow EEA nationals to enter the UK as they do now, using their passport or national identity card (and being able to use eGates if they are travelling on a biometric passport) and will last for 36 months from date of grant. Note, however, that the Government has said that it will be phasing out the use of EEA national identity cards for travel to the UK and that this will happen during 2020. Applications will involve an online process and identity, security and criminality checks and will be free.

In 2 important ways, however, Euro TLR differs from its predecessor – and, perhaps surprisingly, is more favourable:

• Firstly, there is no requirement (as was envisaged before) to apply after 3 months stay in the UK – the application merely needs to be made by 31 December 2020. There is arguably therefore an incentive to delay application until towards the end of the window. Assume there is a no deal exit on 31 October 2019. The EEA national who arrives in the UK shortly after that date, applies fairly promptly and is granted Euro TLR from 1 December 2019 would have their right to stay in the UK end on 1 December 2022 (unless they were, for example, able to remain under the new immigration system which should be in place well before then). If, however, the same individual delays their application until towards the end of the transitional period and is granted Euro TLR from 20 December 2020, their right to stay in the UK under that leave would not end until 20 December 2023.

• Secondly, where an EEA national is granted permission to stay under the new, to be introduced, immigration system in a route that leads to settlement in the UK, their 36 months’ Euro TLR will count towards the qualifying residence period for settlement (usually five years).

As mentioned, the application for Euro TLR needs to be made by 31 December 2020, though it would be perfectly possible for the EEA national to enter the UK during the transitional period, not apply at all for Euro TLR, but instead apply to remain under the forthcoming immigration system by 31 December 2020 or leave the UK by that date.

If, of course, the UK leaves with a deal then there will be no need for Euro TLR assuming that, as previously envisaged, EEA nationals arriving in the UK before 1 January 2021 would be eligible to apply for settled status.

Other points to note include that employers, landlords and other third parties will not be required to distinguish between EEA nationals who moved to the UK before or after Brexit until the new points-based immigration system is introduced from January 2021.

From then on it will be necessary to check that an EEA national has a valid UK immigration status, but this will not apply retrospectively. So, for example, an institution will not from 1 January 2021 have to re-check that any EEA nationals, already employed by it, have Euro TLR or a valid status under the new rules but it would need to do so for anyone it recruits from then on. This is what we had understood would be the position from previous announcements but, given the uncertainty created recently, this clarification is welcome.

What about family members?

EEA nationals who move to the UK after 31 October 2019 may be accompanied by their non-EEA national 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.

Close family members (spouses/partners and dependent children under 18) may apply for Euro TLR once their EEA national sponsor has applied under the scheme.

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.

What else is going to change?

The policy paper states that, ahead of the primary legislation to repeal freedom of movement in its entirety, the Government will introduce specific changes, to reflect the fact that the UK is no longer part of the EU. These changes are “to increase security and better protect the UK public” and will enable the Government to:

• keep out and deport more EU citizens who commit crimes by applying tougher UK criminality thresholds at the border and also when crimes are committed in the UK

• remove the blue EU customs channel, requiring all travellers to make a customs declaration by choosing either the green or red channel

• remove the rights for post-exit arrivals to acquire permanent residence under retained EU law, and the rights for UK nationals who move to the EU after exit to return with their family members without meeting UK family immigration rules

• introduce blue UK passports starting from the end of the year

What about the new immigration system?

It is the Government’s intention to introduce from January 2021 a “new, Australian-style points-based immigration system”. The policy paper is short on detail merely saying this will be a “fairer immigration system that prioritises skills and what people can contribute to the UK, rather than where they came from”.

Those who arrive in the UK from 1 January 2021 will need to apply under this system to come to the UK, as will those EEA nationals already in the UK as at 1 January 2021 who have not applied for settled status (though if there is a deal reached the deadline for applying is stated to be 30 June 2021) or Euro TLR. Those who obtain Euro TLR will also have to apply when their 36 months leave expires if they want to remain – and are entitled to do so.

On 19 December 2018, the Government published its White Paper regarding the UK’s future immigration system - read our briefing of 20 December 2018 for more information.

Since then, the Government has, on 24 June 2019, commissioned the Migration Advisory Committee (MAC) to reconsider the issue of salary thresholds and, on 3 September 2019, the MAC was in addition asked to consider:

• how additional flexibility could be added to the operation of salary thresholds through the awarding of “points” to prospective migrants for the attributes they possess

• which migrant characteristics should be prioritised within the immigration system in order to produce the most beneficial outcomes for the UK

• what best practice can be learnt from international comparators, including the Australian immigration system, to strengthen the UK labour market

The MAC has been asked to report by January 2020, so it is likely to be next year before we are any closer to understanding the specific details of the new system.

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