Immigration in the Brexit scenarios: what could happen?

24 January 2019 | Jonathan Martin

With just over two months to go until the date for the UK’s departure from the EU is reached, Brexit is looking more unstable than ever, which may be a source of worry for EU nationals and EU companies. Senior Consultant at Abbiss Cadres, Jonathan Martin takes a look at what the possible options are for Brexit, and how Immigration may change in each outcome.

What do we know?

We know what the Rules are currently for EU nationals in the UK and, should there be a transitional period, what the transitional arrangements will be up until 31 December 2020. Despite the publishing of The Immigration Bill setting out what the Rules will be post Brexit, there is still great uncertainty over what will happen following Parliament’s overwhelming rejection of Theresa May’s Withdrawal Bill on 16 January 2019.

Whatever is going to happen, it makes sense for EU nationals and the companies that employ them to take advantage of the current Regulations which are more generous than what will replace them. As a consequence of this, we strongly encourage EU citizens and their employers to take action now.

Currently, there are three possible options for the UK. Firstly we will leave with a deal on 29 March 2019, or on a later date. Secondly, we may leave without a deal on 29 March 2019 – a ‘hard’ Brexit. Thirdly, we may not leave at all.

Leaving the EU with a deal

Whether we leave with a deal on 29 March 2019 or on some later date, we already know the consequences this will have for EU nationals. All EU nationals and their families will have to apply under the EU Settlement Scheme.

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 people. 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 five 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. For example, an Italian company can establish themselves in the UK and can then post their Chinese, Brazilian and Indian workers here.

Once the UK leaves the EU, the Government has already established the EU Settlement Scheme. Although the rules are changing, 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 have Residence Cards valid for five years or Permanent Residence. Under the Scheme, EU Citizens will be granted pre-settled status which is for those who have been in the UK for up to five years and settled status for those who have been here for five years or more.

The EU Settlement Scheme has been trialled and the Home Office has announced that from 21st January 2019, EU citizens and their non-EU citizen family members will be able to take part in the public test phase of the Scheme. 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 recently published 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.

A further change is that under the current Regulations, EU citizens are better protected against removal. So whereas providing false information or having criminal convictions are used against non-EU migrants to refuse permission to remain, they are generally not an issue for EU nationals unless the convictions are for serious offences. After the transition period, from 1 January 2021, EU nationals will have to answer the same questions about convictions as other migrants.

No Deal

If the UK just left the EU on 29 March 2019 without a deal, then freedom of movement would end immediately and so any new entrants to the UK would have to meet the requirements of the Immigration Rules. 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 Settled 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 29 March 2019 rather than 31 December 2020, and applications must be submitted by 31 December 2020. 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.

It is reassuring to know that the only thing there is a majority for in Parliament at the moment is that we should not leave without a deal and therefore it seems that this is the least likely outcome.

No Brexit

In the event the UK does not leave the EU, then freedom of movement on the same terms will continue. While there may be an overhaul of the UK’s Immigration Rules it is unlikely that there would be any significant changes to the EEA Regulations which govern freedom of movement which means workers, jobseekers, students and people of independent means from the EU and their families will still have the right to come to the UK.

Contact us

If you have any queries on how these changes will impact your business, contact our team on +44(0)203 051 5711 or email us.


Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this article. For further legal information click here.

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