Brexit – Temporary visas announced for EU nationals in a no deal scenario

The UK government has now confirmed that in the event of a “no deal” Brexit:

• EU nationals will be able to travel to and enter the UK using a biometric passport or ID card on the same terms as they currently do, including using e-gates, during a transition period until 31 December 2020.
• To achieve a frictionless border, EU nationals passing a security check will automatically be given 3 months “leave to enter” the UK at no cost (and multiple entries would be possible, as with current visitors from visa-waived countries such as US);
• Non-EEA family members will need to apply for a family permit prior to travel to the UK, as they currently do;
• EU nationals wishing to remain in the UK for more than 3 months must apply for a new permit - termed European Temporary Leave to Remain (“ETLR”) and will be required to pay a (currently undetermined) fee; 
• ETLR will be a temporary, non-extendable visa available for 36 months/3 years only. There is no consideration of skill level or salary for this visa.  Time spent in this status will not count towards an indefinite leave to remain application;
• The ETLR application must be made online, and migrants will be asked to prove their identity with a passport or ID card and declare any criminal convictions (serious and persistent offenders or threats to national security can be refused);
• EU nationals due to remain in the UK for more than 3 years will need to apply for a further visa once the UK’s new skills-based immigration system is launched on 1 January 2021;
• Not all EU nationals who hold ETLR will necessarily qualify under the new system, as employer sponsorship, minimum salary and skills levels will apply; 
• Those EU nationals already living in the UK at 29th March 2019 will have until 31 December 2020 to apply under the EU Settlement Scheme for “settled status”; 
• Employers will not be asked to distinguish whether EU nationals were resident before or after Brexit and the right to work will continue to be based on the passport or national identity card alone i.e. there will be no significant changes to the right to work regime (or to right to rent).  Employers will only need to check new EU employees status from 1 January 2021 once the new skills-based system is launched (and there will be no need to check existing employees retrospectively); and

In the alternative, in the event that the Withdrawal Agreement (“the deal”) is ratified:

• EU nationals will be able to travel to and enter the UK using a biometric passport or ID cards on same terms as they currently do during a transitional period until at least 31 December 2020;
• EU nationals arriving in the UK from 1 January 2021 must apply for a visa prior to travel under the UK’s new skills-based immigration system (details of which should be confirmed by December 2019).
• EU nationals living in the UK by 31 December 2020 would have until 30 June 2021 to apply under the EU Settlement Scheme for “settled status” or “pre-settled status”.

Please note that, in any scenario, Irish nationals will continue to have the right to enter and live in the UK under the Common Travel Area arrangements which pre-date the European Union, and will not need to apply under either the EU Settlement Scheme or for European Temporary Leave to Remain. Further, the rules for EU nationals will be applied equally to nationals of EEA countries (Norway, Iceland and Liechenstein) and to Switzerland.

Deloitte’s View

Employers have known for some weeks that, whether deal or no deal, the EU Settlement Scheme will protect EEA nationals living in the UK prior to 30 March 2019. However, the position for new assignees arriving to the UK post-Brexit has, to date, been unclear. Employers are only now in a position to conduct thorough no deal planning that takes into account the position for both current and future employees from the EU, EEA and Switzerland. This latest announcement confirms that new migrants, while allowed entry to the UK on the same terms and at no cost, will have to obtain a temporary visa at a cost in order to stay beyond 3 months. This will then need to be followed with an application under the UK’s new single immigration system once launched and if staying more than 3 years. Employers therefore need to factor in increased costs and process requirements for EU, EEA and Swiss nationals in the short term should “no deal” prevail, and amend recruitment strategies accordingly. 

In the event of no deal, employers will for the first time have two sets of Europeans in their workforce: those with residency rights (which may or may not be registered under EU Settlement Scheme) and those with temporary permission to live and work in the UK (ETLR). However, the fact that right to work checks will continue to be based on passports, ID cards, and Biometric Residence Card alone, means employers should not have to adapt right to work checks at short notice.