Immigration Issues No Deal

Introduction

A Brexit deal has been agreed in principle with the EU. If the withdrawal agreement is not signed by the UK and the EU, the United Kingdom could still leave the European Union without a deal on 31 January 2020. This paper sets out the immigration arrangements for EU citizens¹ in the event that the UK leaves the EU without a deal.

This paper sets out the different arrangements that will apply to EU citizens who are moving to the UK after Brexit on 31 January 2020 and their family members². They replace those set out in the policy paper that was published on 28 January 2019.

Irish citizens’ rights are unaffected by these new arrangements. They can continue to come to the UK to live and work as now.

Summary

After Brexit, EU citizens who move to the UK will be able to apply for a 36 month temporary immigration status – European Temporary Leave to Remain (Euro TLR).

Applications to the new Euro TLR scheme will be simple and free and will be made after arrival in the UK. There will be no need for EU citizens travelling to the UK after Brexit to make any special arrangements in advance.

There will be some visible changes at the UK border, and tougher rules for criminals but otherwise EU citizens will be able to cross the UK border as now.

EU citizens who move to the UK after Brexit and who do not apply for Euro TLR will need to leave the UK by 31 December 2020 unless they have applied for and obtained a UK immigration status under the UK’s new points-based immigration system.

EU citizens who are resident in the UK before Brexit on 31 January 2020

The immigration arrangements in this paper do not apply to those EU citizens who are resident here before 11pm on 31 January 2020 and their family members. The government has been clear that we want them to stay and they are eligible to apply to the EU Settlement Scheme to obtain a UK immigration status which will enable them to do so.

Resident EU citizens have until at least 31 December 2020 to apply to the EU Settlement Scheme in the event that the UK leaves the EU without a deal. Until then, they can continue to take up employment and rent property as now by showing their passport or national identity card. Their rights to claim benefits and access services in the UK will remain unchanged³. Further information about the EU Settlement Scheme is available on GOV.UK.

EU citizens entering the UK after Brexit

Free movement as it currently stands under EU law will end on 31 January 2020. However, Parliament has provided that much of the free movement framework will remain in place under the EU (Withdrawal) Act 2018 until Parliament passes primary legislation to repeal it. Ahead of that, the government will introduce some specific changes, reflecting that we are no longer part of the EU, to increase security and better protect the UK public. We will:

• keep out and deport more EU citizens who commit crimes by applying tougher UK criminality thresholds at the border and also when crimes are committed in the UK
• remove the blue EU customs channel, requiring all travellers to make a customs declaration by choosing either the green or red channel
• remove the rights for post-exit arrivals to acquire permanent residence under retained EU law, and the rights for UK nationals who move to the EU after exit to return with their family members without meeting UK family immigration rules
• introduce blue UK passports starting from the end of the year as a symbol of our new, sovereign identity

Crossing the border after Brexit

For the time being, border crossing arrangements will remain unchanged. EU citizens will enter the UK as they do now, using their passport or national identity card. They will be able to use eGates if they are travelling on a biometric passport, and they will not face routine intentions testing.

EU citizens will be subject to security checks, as now, but will face tougher UK rules on criminality and conduct committed after Brexit.

The UK will also be phasing out the use of EEA national identity cards for travel to the UK. This will happen during 2020. More details will be provided in due course.

We recognise that some people will need to apply for a passport and that sufficient notice will be required to enable them to do so.

EU citizens moving to the UK after Brexit

For a transitional period after Brexit on 31 January 2020 until 31 December 2020, law abiding EU citizens and their family members will be able to move to the UK and live, study, work and access benefits and services as they do now³.

EU citizens and their close family members who move to the UK after Brexit and wish to stay beyond 2020 will need to apply for a UK immigration status granting them permission to stay.

After Brexit, the Home Office will open a new voluntary immigration scheme – the European temporary leave to remain (Euro TLR) Scheme – to provide a route to apply for this immigration status. Applications will involve a simple online process and identity, security and criminality checks.

Successful applicants to the Euro TLR scheme will be granted a period of 36 months’ leave to remain in the UK, running from the date the leave is granted. This will provide EU citizens who move to the UK after exit and their employers with greater confidence and certainty during the transition period, and ensure that they have a secure legal status in the UK before the new immigration system is introduced from January 2021.

EU citizens may choose to use the evidence of this UK leave – in the form of a secure digital status – to establish their entitlements to work and rent property during the transitional period until 31 December 2020. During this period, they will also be able to evidence those rights using their passport or national identity card.

If they subsequently qualify for leave under the future immigration system in a route that leads to settlement (indefinite leave to remain) here, an EU citizen who spends time in the UK with a Euro TLR immigration status will be able to accrue that time towards the qualifying period for settlement.

Future immigration system

The government will introduce a new, Australian-style points-based immigration system from January 2021. The independent Migration Advisory Committee has been commissioned to review the Australian system and other international comparators, to advise what best practice can be used to strengthen our labour market. We will introduce a new, fairer immigration system that prioritises skills and what people can contribute to the UK, rather than where they came from.

EU citizens who move to the UK after Brexit who do not hold Euro TLR will need to apply under the new immigration system by 31 December 2020 if they wish to remain here beyond that date.

Those who hold Euro TLR will have a bridge into the new immigration system: if they wish to remain in the UK, they will only be required to apply to the new points-based immigration system when their 36 months’ Euro TLR leave expires. They may apply for status under the new system earlier if they wish.

Where an individual who holds Euro TLR does not meet the requisite criteria under the new immigration system or otherwise have a right to remain in the UK, they will be expected to leave the UK when their Euro TLR expires. Euro TLR will therefore only provide a temporary stay in the UK for some EU citizens.

Where an EU citizen is granted permission to stay under the new, points-based immigration system in a route that leads to settlement (indefinite leave to remain) in the UK, their 36 months’ Euro TLR will count towards the qualifying residence period for settlement. The qualifying residence period is usually five years, but may vary according to route. Precise arrangements under the new, points-based immigration system will be confirmed in due course.

Enforcement

EU citizens and their family members who move to the UK after 31 January 2020 will need to have applied for a UK immigration status (whether Euro TLR or under the new, points-based immigration system) by 31 December 2020. Otherwise, they will be here unlawfully and will be liable to enforcement action, detention and removal as an immigration offender.

Resident EU citizens and their family members who are eligible for the EU Settlement Scheme will have ample opportunity to apply for status under the scheme. In the event that the UK leaves the EU without a deal, the deadline for applications under the scheme will be 31 December 2020.

Employers, landlords and other third parties will not be required to distinguish between EU citizens who moved to the UK before or after Brexit until the new, points-based immigration system is introduced from January 2021.

Until 31 December 2020, checks on, for example, an EU citizen’s right to work or rent, will be undertaken as they are now, and all EU citizens will be able to evidence their rights here using their passport or national identity card. Alternatively, if they wish to do so, an EU citizen will be able to use their digital status, granted under the EU Settlement Scheme or under the Euro TLR scheme, to prove their right to work and other entitlements, via the Home Office’s digital status checking service. This service will enable them to share their digital status securely with an employer or other third party who needs to see it. Non-EU citizen family members will be able to rely on a biometric immigration document to prove their entitlements, also via the digital status checking service where they wish to use this.

When the new points-based immigration system is introduced from January 2021, employers and others will need to check that, in respect of any new recruitment or new provision of service, an EU citizen has a valid UK immigration status, and not just an EU passport or national identity card. This check will be undertaken when that individual applies for a new job, tenancy or bank account for example. It will not be done retrospectively.

Third country family members accompanying EU citizens

EU citizens who move to the UK after 31 January 2020 may be accompanied by their non-EU citizen family members. This includes direct family members (such as a spouse, civil partner or child), and extended family members (durable partners and dependent relatives), as now. They will need to be in possession of a valid national passport and an EEA family permit and will be able to stay in the UK until the end of 2020.

Close family members (spouses/partners and dependent children under 18) may apply for Euro TLR once their EU citizen sponsor has applied under the scheme. They will apply in the same way as EU citizens and need to provide required biometrics.

They will be granted Euro TLR for a period that does not exceed the end date of the Euro TLR granted to their EU citizen sponsor.

Any close family member who does not obtain Euro TLR by the end of 2020, and who does not otherwise have a right to remain in the UK, will be expected to leave the UK at that point.

Family members of British citizens who move to the EU after Brexit

After Brexit on 31 January 2020, there will no longer be a route under EU law for the family members of UK nationals who move to the EU after that date to return with them to the UK. This means that, for UK nationals moving to the EU after Brexit to return to the UK with their non-British, non-Irish family members, the family members will need to meet the UK’s family immigration rules.

The current route reflecting EU law will remain open until 29 March 2022 for existing close family members of UK nationals who were resident in the EU27 before exit.

Fees

There will be no fee for an application for Euro TLR when the scheme is introduced.

The Common Travel Area and the associated rights of Irish citizens in the UK

The UK and Irish governments have made firm commitments to protecting existing Common Travel Area (CTA) arrangements, including the associated rights of British and Irish citizens in the other state.

This means that Irish citizens will continue to have the right to enter, live and work in the UK without requiring permission. The government will appropriately reflect this position in legislation ahead of the introduction of the new points-based immigration system. The close family members of Irish citizens arriving in the UK after Brexit on 31 January 2020 (who are non-British, non-Irish citizens) may apply for Euro TLR. Those who do not, will need to apply under the new immigration system if they wish to remain here after 31 December 2020. The UK will also maintain its existing approach to the operation of immigration controls for journeys from within the CTA to the UK.

EFTA citizens

The arrangements set out here will also apply to citizens of the EFTA states (Iceland, Liechtenstein, Norway and Switzerland) who move to the UK after 31 January 2020.

Glossary

1. Biometric immigration document

This is a document issued by the Home Office which includes the holder’s name, date and place of birth, fingerprints and a photo of their face, and their immigration status and conditions of stay in the UK. It is also referred to as a biometric residence card or biometric residence permit.

2. Close family member:

They are related to an EU citizen in one of the following ways:

• spouse or civil partner
• partner
• child under 18
• child under 18 of the spouse or civil partner

3. Direct family member

An EU law term referring to an EU citizen’s:

• spouse or civil partner
• child aged under 21 or aged 21 or over where they remain dependent (including a child of the EU citizen’s spouse or partner)
• dependent parent or grandparent (including of the EU citizen’s spouse or civil partner)

4. EU Settlement Scheme

The scheme set up by the government to protect the rights of EU citizens who are resident in the UK before the specified date (which is exit in a no deal scenario) and their family members. Those who have five years’ UK residence are eligible for settled status (indefinite leave to remain). Those who have a shorter period of residence are usually eligible for pre-settled status (limited leave to remain for 5 years) and can apply for settled status as soon as they have completed five years’ residence.

5. Extended family member

An EU law term referring to a person who is related to an EU citizen, but is not a direct family member (e.g. a cousin or aunt), who was part of the EU citizen’s household, or dependent on them, in their home state and remains so; or who is dependent on them for personal care on serious health grounds.

Under EU law, the definition of extended family member also includes durable (i.e. unmarried) partners but, for the purposes of the EU Settlement Scheme and of Euro TLR, the UK will include durable partners in the provision made for spouses and civil partners.

6. European temporary leave to remain (Euro TLR)

A form of limited leave to remain granted under the UK’s Immigration Rules. It is a scheme for EU citizens and their close family members who arrive in the UK during the transitional period from Brexit on 31 January 2020 to 31 December 2020.

7. Leave to enter/remain

This is immigration permission granted under the Immigration Act 1971 which permits an individual who is subject to UK immigration control to enter or remain in the UK. When leave is granted it is subject to compliance with conditions and is given for a specific period of time, unless it is ‘indefinite’.

8. Required biometrics

• for EU citizens, a facial photograph of the applicant (within the meaning of “biometric information” in section 15 of the UK Borders Act 2007)
• in the case of a non-EU citizen, a facial photograph and the fingerprints of the applicant (also within the meaning of “biometric information”)

9. Settlement

This is also referred to as ‘indefinite leave to remain’. This means that there is no time limit to the period that the person can stay in the UK. Where a person is granted indefinite leave to remain, they have the right to live and work in the UK, without any time restriction. Indefinite leave to remain usually lapses when a person is absent from the UK for more than two years. However, indefinite leave to remain (known as ‘settled status’) granted under the EU Settlement Scheme lapses after an absence from the UK of more than five years.

10. Transitional period

The period between the UK’s exit from the EU at 11pm on 31 January 2020 and the start of the UK’s new immigration system from January 2021.