It was announced by the Home Secretary on 18th August 2019 that Freedom of Movement for EU citizens would end overnight – rather than with a transitional period as previously believed. This would be active from 31 October 2019, and all foreign nationals entering the UK from 1 November 2019 would have to show that they met the UK Immigration Rules. This immediate end to Freedom of Movement would pose obvious difficulties for companies who are planning to send EU citizens to the UK after 1 November 2019.
There was much opposition to this plan and consequently in the Sunday Times on 1 September 2019 the Home Office let it be known that even in the event of a ‘no deal’ departure EU nationals will be able to come to the UK until 2021. However, an EU citizen entering the UK and wishing to stay for longer than three months would have to apply for EU Temporary Leave.
In the event of a No Deal Brexit
Applicants of the EU/EA or Swiss Settlement Scheme (Settlement Scheme) must be resident in the UK by 31 October 2019 in the event of a No Deal Brexit.
If the UK just leaves the EU on 31 October 2019 without a deal then freedom of movement would end immediately. New EU entrants to the UK would be allowed to remain for three months and could extend that in the short term. However by the end of 2020 it is likely that they would have to meet the same Immigration Rules which apply to people from outside of the EU. For workers this would mean finding a sponsor. For the EU nationals and their families already in the UK, the Government has confirmed that if the UK does withdraw from the EU without a deal, this will not affect the Settlement Scheme or the rights of individuals who have already been granted settled or pre-settled status. However applicants must be resident in the UK by 31 October 2019 rather than 31 December 2020 and applications must be submitted by 31 December 2020 rather than 30 June 2021. However, it is likely that there will have to be swift moves from the Government on a number of fronts and it is possible that things will change quickly.
The Current Position
Until we leave the EU, the current Rules apply which say that EU citizens can be lawfully in the UK provided they are workers or jobseekers, students or persons who are self sufficient. If they are in the last two categories then they all require private health insurance.
EU citizens in the UK on any of these bases are exercising treaty rights and are known as qualified persons. Any qualified person can also have their family members with them even if the family members are from outside Europe. If qualified persons and their families have been in the UK meeting those requirements continuously for 5 years they can qualify for permanent residence. Once they have held permanent residence for a year they can apply for British Citizenship.
Companies also have freedom of movement in a similar way to individuals. They can set up in any EU state and are entitled to move their employees here even if they are not European. These are known as posted workers. So an Italian company can establish themselves in the UK and can then post their Chinese, Brazilian and Indian workers here.
Current Plans for EU citizens after the UK leaves
Once the UK leaves the EU, the Government have already established the Settlement Scheme. If we leave the EU with a deal, freedom of movement will not end immediately and EU nationals and their family members will still be able to come to the UK on the same terms until 31 December 2020. However they will have to apply under the Scheme.
The Scheme has introduced a change in terminology. The current Regulations mean individuals either have Residence Cards valid for five years or Permanent Residence. Under the Settlement Scheme, EU Citizens will be granted pre-settled status which is for those who have been in the UK for up to five years or settled status for those who have been here for five years or more.
All EU citizens and any non-EU family members must submit a settlement application prior to 30 June 2021. Only individuals who have begun living in the UK on or before 31 December 2020 are eligible to submit an application.
We also know that from 1 January 2021 the Government’s proposals in the Immigration Bill are that EU citizens will have to satisfy the same Rules as citizens from outside the EU. The Rules are being changed to introduce new categories of seasonal and short term work.
Given the uncertainty, we strongly advise all EU citizens currently in the UK to apply for settled status. Those planning on coming to the UK should do so before 31 October 2019 if possible. Companies who want to continue to bring in talent from across Europe will need a Sponsor Licence and the ability to sponsor workers from outside the UK. It would be prudent for companies to get this in place before Brexit happens because they will want to be ready for whatever occurs should the UK leave on 31 October 2019.
If you have any queries on how these changes will impact your business, and need help to get ready for the 31 October deadline, contact our team on +44(0)203 051 5711 or email us.