EU citizens in the UK and a ‘no-deal’ Brexit

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 received its Second Reading on 28 January and has passed into Committee stage. On the same day, the Secretary of State for the Home Office, Sajid Javid, announced a new ‘European Temporary Leave to Remain in the UK’ as part of the Government’s no-deal Brexit planning.

The
Government
plans to implement the Immigration Bill and end free movement from
30 March 2019 in the event of a no-deal Brexit. 
This means that for the most part, EU citizens and their family members
who come to the UK from 30 March 2019 will require immigration permission to
enter the UK. The Government and the Home Office will need rules in place to
grant immigration leave to enter and remain to EU citizens.  

However the Government has stated that the new immigration rules, as set out in the White Paper, will “take some time to implement.” This means there will be a gap in immigration law and policy between the end of free movement and the implementation of the new immigration rules for EU citizens. To fill this gap, the Home Office has announced it will implement the new ‘European Temporary Leave to Remain in the UK,’ subject to parliamentary approval.

The main features of European Temporary Leave to Remain

EU
citizens (including EFTA citizens) will be able to enter the UK as they do now
(i.e. without the need for a visa/immigration permission) for a period of up to three months. During this time EU
citizens will have the right to work and study in the UK.

EU citizens who wish to remain in the UK for more than the initial three months will need to apply for ‘European Temporary Leave’. The Home Office has explained that this will be done through an online application where the applicant will need to prove their identity and declare any criminal convictions. This sounds similar to the application process for ‘settled status’.

European
Temporary Leave will allow the holder to remain in the UK for 36 months from the date of their
application. EU citizens with this type of leave will have the right to work
and study in the UK. It will be temporary and cannot be extended, nor will it
lead to settlement in the UK. Holders of this type of leave would be required
to apply for further leave to remain under the UK’s new immigration rules when
implemented in the future. As the Home
Office explains: “there may be some who do not qualify under the new
arrangements and who will need to leave the UK when their leave expires.”

There will be an application fee and family permits will be required for non-EEA ‘close family members’. The Home Office explains in further detail:

“European Temporary Leave to Remain will allow EEA citizens arriving in the UK after 29 March 2019 to live, work and study in the UK if there’s no Brexit deal.

“EEA citizens who are granted European Temporary Leave to Remain will be able to stay in the UK for 36 months from the date of their application. European Temporary Leave to Remain will be a temporary, non-extendable immigration status. It will not give indefinite leave to remain (ILR), lead to status under the EU Settlement Scheme or make EEA citizens eligible to stay in the UK indefinitely. If EEA citizens want to stay in the UK for more than 36 months, they will need to apply for an immigration status under the new immigration system, which will come into effect from 1 January 2021. Those who do not qualify will need to leave the UK when their European Temporary Leave to Remain expires.”

Those who don’t need to apply

The following people will not be required to apply for European Temporary Leave:

• EU citizens and their family members with settled or pre-settled status.
• Irish citizens.

Those
who are a “serious
or persistent criminal or a threat to national security” will not be
eligible and the UK’s deportation threshold will apply.

EU
citizens can enter the UK with either their passport or a valid nationality
identity card.

The Home Office explains that employers and landlords conducting right to work and rent checks for EU citizens will not be required “to start distinguishing between EU citizens who were resident before exit and post-exit arrivals.” Until 2021, EU citizens can continue to rely on their passports or national identity cards.

Settled status and no-deal

The
introduction of European Temporary Leave does not affect those eligible for the
settled status scheme. EU citizens living in the UK prior to 29 March 2019 can
still apply for settled status in a no-deal Brexit, as European Temporary Leave
is a status for those who arrive after 29 March 2019. For more information on
this, see the Library’s Insight ‘What
does the Withdrawal Agreement say about citizens’ rights?’.

The
settled status scheme has completed its restricted pilot testing phases and is
now open for applications from all eligible EU citizens. The
Prime Minister Theresa May announced on 21 January 2019 that the £65 fee for
settled status will be abolished. People who have already applied and paid the
fee will
be refunded.

The Home Office has further stated that EEA citizens who arrive in the UK after 29 March 2019, but who had lived in the UK prior to 29 March 2019, will be eligible to apply for settled status. It is not clear what the specific eligibility requirements will be for people with these circumstances who wish to apply for settled status.

Further reading

The Immigration and Social Security Co-ordination (EU
Withdrawal) Bill 2017-19, House of Commons Library.

The status of EU citizens in the UK after Brexit, House of Commons Library.

What does the Withdrawal Agreement say about citizens’
rights? House of Commons Library.

An employer’s guide to right to work checks, Home Office, 28 January 2019.

Hannah Wilkins is an Immigration and Asylum Researcher at the House of Commons Library.

The information was correct at time of writing. However, as a result of the changing Brexit landscape the dates referred to may no longer be current.