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Article:

EU nationals arriving after a no-deal Brexit

20 March 2019

The UK Government’s contingency planning for a no-deal Brexit continued on 28 January 2019 with publication of proposed rules for EU, EE and Swiss nationals arriving in the UK after 29 March 2019.

Unsurprisingly, the proposals state that free movement will end on 29 March 2019 or shortly thereafter. However, even though there is no deal, the Government will apply a unilateral transition period of its own for EU/EEA/Swiss nationals arriving in the UK between 30 March 2019 and 31 December 2020. These proposed arrangements will not apply to Irish citizens (who will continue to have the right to enter and live in the UK).

These arrangements will not apply to EU/EEA/Swiss nationals who arrive in the UK before 30 March 2019 – ie individuals who can apply for the EU Settlement Scheme.

First three months

During this transition period, EU/EEA/Swiss nationals will be able to enter the UK by showing their valid EEA passport or identity card and will automatically be granted leave to enter for three months. This will include permission to work and study during those three months.

Longer stays

EU/EEA/Swiss nationals who arrive in the UK between 30 March 2019 and 31 December 2020 and want to stay for longer than three months will have to apply for a new status called European Temporary Leave to Remain (ETLTR) and pay an application fee. Applications will be subject to criminality and security checks, but if granted ETLTR will last for 36 months – ie running past the proposed start date of 1 January 2021 for the UK’s intended post-Brexit immigration arrangements. Once the ETLTR expires, the individual will be able to apply for a high skilled workers visa (Tier 2) or a short-term worker visa under the intended ‘Transitional short term workers’ rules.

Individuals who are granted ETLTR after 29 March 2019 will be able to apply for a family permit to bring non-EEA nationals who are their 'close family members' (spouse or partner and dependent children under 18) into the UK.

Employer checks

As now, employers will have to carry out ‘right to work checks’ when taking on employees. The Government’s guidance published on 28 January 2019 states that employers will not be asked to distinguish between EEA nationals who arrived on or before 29 March 2019 and those who arrived afterwards. A valid EEA passport or national identity card will be enough to satisfy a right to work check.

However, for employers that wish to recruit EEA nationals for the long term, it may be prudent to check on their time spent in the UK and monitor the progress of their ETLTR applications. The Government intends that from 2021, its ‘Digital Status Checker’ will be available to employers for compulsory checks on the status of EU citizens they take on.   

For help and advice on cross-border employment issues please contact Karen McGrory.

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