The UK government has confirmed what was suspected (and what the Home Office has hinted at in private talks): in the event of a no-deal Brexit, free movement will end on 29 March 2019. EU citizens arriving after this date face a new temporary system.
The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, once enacted, will repeal the Immigration (European Economic Area) Regulations 2016, which currently implement free movement in UK law.
There will be a temporary transitional system running from 30 March 2019 until 31 December 2020, to give the government time to implement the new immigration system on 1 January 2021.
This means that EU citizens arriving in the UK after 29 March this year (and those who were here before but their continuous residence was broken) will need, for the first time in decades, permission to be in the UK or face the wrath of the Home Office.
EU migration rules if no deal
EU citizens (and non-EU family members) coming for short visits will be able to enter the UK, as they can now, and stay for up to three months from each entry. This new leave to remain will be an automatic grant, given on arrival, with permission to work:
They will be automatically granted leave to enter by order, which will mean they can stay for up to three months and will be permitted to work and study, which will mean they can start those activities on arrival.
Those who want to stay longer will need to apply to the Home Office for leave to remain within three months of arrival. If you don’t hold valid permission to be in the UK (or forget to apply) your presence here will be unlawful and you may be liable to enforcement action.
If you do remember to apply to stay longer you will receive a non-extendable visa, to bridge your time in the UK to when the new immigration system starts. It will be valid for 36 months (three years). If you wish to stay even longer, you will need to apply for a different visa under the new system after 1 January 2021.
That doesn’t guarantee that everyone will qualify under the new immigration system. There’s no guarantee you’ll be able to stay in the U.K. permanently:
There may be some who do not qualify under the new arrangements and who will need to leave the UK when their leave expires.
All this isn’t without exceptions. There will be security checks and the Home Office will apply the much lower deportation threshold to justify refusals or removals on the basis of criminality. For an excellent summary of the current law on deporting EU citizens see this post.
It’s not clear when these checks will take place, given the automatic grant of leave. Perhaps when you apply to stay longer under the new system, but I wouldn’t rule it out at the three-month stage.
This means there will be two groups of EU citizens, those resident before 29 March 2019 (and eligible to apply for settled status) and those who arrive after this date (or were here before and their continuous residence was broke) under this temporary system.
How will employers, landlords, banks, etc, identify between the two groups? Well the government will not ask them to, at least for now:
Until all resident EU citizens and their family members who are eligible for the EU Settlement Scheme have had a reasonable opportunity to apply for and be granted status, which will be by the end of December 2020, we will not ask employers or other third parties, such as landlords, to start distinguishing between EU citizens who were resident before exit and post-exit arrivals.
From 2021, employers and others will need to check EU citizens’ status using the Home Office’s Digital Status Checker, but not retrospectively. Until 2021 a passport or national ID card will be sufficient evidence:
Until 2021, EU citizens will continue to be able to evidence their rights to work and to rent property using a passport or national identity card, and non-EU family members will use a biometric residence document.
Close EU family members (spouse, partner, dependent child under 18) can accompany the EU national, ie arrive as a visitor together and stay together. But, as usual for the UK government, if your family members are non-EU citizens it’s a little trickier:
… third country national family members who wish to accompany an EU citizen under these arrangements will need to apply in advance for a family permit.
Third country nationals again get unfairly treated, as they will be charged fees for all applications, including the three-month visit. The initial three months of entry for EU nationals will be free, but the extension application will attract a fee. The amount is to be set at a later date.
To reiterate: this is what will happen in the event of no Brexit deal. If there is a deal, free movement as we know it today will continue until 31 December 2020.
More details to follow
This does leave some questions unanswered.
For example, when and how will employers etc be required to differentiate between the two groups of EU citizens? If from 1 January 2021, then they need to be able to understand the two grants of leave — settled status and European Temporary Leave to Remain — and what they mean. It might be easier to postpone such checks until 36 months after 31 December 2020, when all EU citizens will either have settled status or have transitioned to the new immigration system.
Will the transition from the 36 month visa to the new immigration system be easy, or will it require meeting strict requirements similar to the current Points Based System? If the government remains on course with its current thinking, it is likely to be some form of the latter.
If so, what then happens if an EU citizen is unable to transition to the new immigration system but has built up family and private life rights in the UK? Presuming that human rights laws remain as they are, would there be grounds for them to stay in the UK on that basis?
What happens if an individual forgets to apply for the 36-month extension? Will they be allowed to apply out-of-time, in the UK, or be required to leave the UK and then re-enter the UK for another three-month period?
All this, and much more, is bound to be fleshed out in Home Office policy at some point in the future.