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European Temporary Leave to Remain further complicates post-Brexit immigration checks

  • United Kingdom
  • Employment law
  • Global mobility and immigration


A major concern of employers about the immigration restrictions to be imposed on EEA citizens after Brexit has been the extent to which they will need to monitor their right to live and work in the UK. That is straightforward at present; citizens of EEA countries have held permission to work in the UK indefinitely for many years. The situation will change after Brexit, when such rights are restricted. The position regarding those EEA citizens who arrive in the UK before, during and after any Brexit transition period needs to be assessed, as does the potential impact of there being no deal agreed.

Before Christmas the Government confirmed that in a no deal scenario those EEA nationals who are resident in the UK before 29th March would be able to apply for settled or pre settled status through the EU Settlement Scheme.

The Government clarified their policy if there is no deal agreed on 28th January in respect of EEA nationals who arrive after 29th March. Immediately after Brexit the European Union (Withdrawal) Act 2018 creates free movement in UK law; as this will be under UK law as opposed to EU law it can be changed. In light of this flexibility the Government has now confirmed that, in the event of no-deal Brexit, EEA citizens will be granted permission to stay for up to three months on arrival in the UK. If seeking to remain longer than three months, they will be able to apply for European Temporary Leave to Remain, permission to stay for up to three years which cannot be extended. Both immigration statuses will allow EEA citizens to live and work in the UK during that time. At the end of the three years, they will need to qualify for further leave to remain within the new immigration requirements, likely to be introduced by the end of 2021, or leave the UK. The process for applying for European Temporary Leave to Remain has not been defined but the announcement refers to criteria proving identity and the need to declare any criminal convictions.

A helpful clarification in the Government’s announcement is that employers will not be asked to distinguish between EEA citizens based on their date of arrival until January 2021. At that point, the deadline to apply for settled status (in the event of no deal Brexit) will have been reached and it will be possible to establish the immigration status of a job applicant digitally. Those commencing employment before then will, as at present, simply be able to present their passport or identity card as suitable evidence of their right to work.

Should a Brexit deal be agreed, the position is more straightforward. EEA citizens would be able to live and work in the UK without further restriction until 31st December 2020. It would be necessary for them to apply for settled or pre-settled status before 30th June 2021. Those arriving from 2021 onwards would need to qualify for leave to remain within new immigration requirements.

The clarification regarding the responsibilities of employers to make document checks is a welcome one. In respect of the European Temporary Leave to Remain scheme, our concern is that the infrastructure necessary to administer this, in addition to the massive undertaking of UK Visas and Immigration to operate the EU Settlement Scheme, may make this a huge task. We also fear the complexity of establishing right to work from 2021 with the introduction of yet another immigration category.