No deal notice on post-Brexit immigration for EEA nationals

The government has published its No-deal notice on Immigration on and after 30 March 2019.

If the Withdrawal Agreement is finally concluded with the EU, the current free movement regime will continue during the ‘implementation period’ until 31 December 2020, to be replaced by the new post-Brexit immigration system. EEA and Swiss nationals who arrive during that period will be eligible for pre-settled status, and then settled status after 5 years.

The no deal notice provides some (long overdue) clarity on a stopgap position for those seeking to arrive on and after 30 March 2019 in the case of no deal. But for those seeking to stay more than 3 years, the position remains uncertain.

Note that the 30 March 2019 date would be subject to relevant Parliamentary approval being secured, so the actual date for commencement of the stopgap regime may be later than that.

A 3 month entry visa. In the notice, the government has confirmed it would end current EU free movement rules on 29 March 2019, and instead put into place a domestic-law based transition scheme, ending on 31 December 2020. While the settled status scheme would continue to apply to everyone who entered by 29 March 2019 (provided they had not subsequently left and lost continuity of residence), those entering via e-gates for the first time after 29 March would be automatically granted a 3-month visa on arrival, and they could work and study during that time. Non-EEA national close family members (spouses, partners and dependent children under 18) could accompany them, but would need to apply for a family permit visa in advance.

A new 3 year visa. If they wanted to stay longer, they would need to apply for 3 years’ temporary leave to remain (and pay a fee). This would be a non-extendable visa. People with this visa could still work and study without restrictions during that time, and the information provided suggests these applications would only be subject to identity, security and criminality checks. Effectively, it would just be a registration system in most cases. This system would run until 31 December 2020, after which the new post-Brexit Immigration system would start.

One key difference with the deal scenario would be that people given temporary leave during the transition would not be within the settled status scheme, and would have to apply to remain under the post-Brexit Immigration Rules when their 3-year visa expired.

Right to work checks. Whether or not there is a deal, employers will not have to carry out pre-employment right to work checks on EEA nationals, beyond checking their passport or national ID card, as currently, until 1 January 2021. But there is concern as to how this will work in practice.

Some certainty for employers, but questions remain. Employers now have a greater degree of certainty, and there will be no immediate ‘cliff edge’ for new EEA national workers.

However, where EEA nationals are likely to want to come for more than 3 years, their long term situation is still uncertain. The post-Brexit proposals are likely to take at least one year to be finalised. One option may be to Tier 2 sponsor those going in to more senior/skilled roles (who meet current Tier 2 eligibility criteria). This would require the employer to register as a sponsor with the Home Office, which can be quite an onerous procedure.

The Immigration White Paper proposes reductions on current restrictions for skilled workers in many respects, and envisages a lighter touch sponsor system than we have currently is the case (particularly for smaller employers). However, as yet, we do not know how much those proposals will change when the government comes to implement them.

Please contact our immigration team on +44(0)20-3355-9610 for more details: