European Union: Brexit: No-Deal Immigration Arrangements For EU Citizens

The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK worksite.

Seyfarth Shaw’s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world.  If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.

Seyfarth Synopsis: British Prime Minister Boris Johnson presented his revised Brexit proposals to European leaders last week. The proposals included alternatives to the backstop arrangement in relation to Northern Ireland. Amidst ongoing negotiations, the indications are that the likelihood of reaching a deal are low. Current legislation requires the Prime Minister to request an extension from the EU if no agreement is reached by October 19th. However, this position may change. Therefore, from an immigration perspective, employers should be prepared for the UK to exit the EU on October 31st under the no-deal provisions.

No-Deal Scenario: Immigration Provisions

If the UK does exit the EU on October 31, 2019 with no deal in place, the arrangements confirmed by the government earlier this month regarding the immigration rights of EU citizens will apply to nationals from the 26 EU countries.The rights of Irish citizens to reside and work in the UK will not be affected by Brexit as they are protected by separate legislation.

The UK immigration provisions for EU citizens in the event of a no-deal scenario are:

  • October 31, 2019: EU citizens who enter the UK by 11 pm on October 31, 2019 will continue to enjoy the rights of free movement, and may reside and work in the UK and do not require further immigration authorization. These individuals must submit an application under the new Settlement Scheme by December 31, 2020. This includes any individuals who have been residing in the UK for many years and/or have documents issued under the previous EEA residency card scheme. An application under the new Settlement Scheme will confirm the individual’s pre-settlement or settlement status. Settlement status is akin to permanent residence and is granted after five years of residency in the UK. Those who hold pre-settlement status may remain in the UK until they meet the criteria to qualify for settlement status after five years. They must also meet the additional requirements, for example in relation to criminal and background checks.

  • November 1, 2019: Under the no-deal arrangements, EU citizens may enter the UK after Brexit Day up until December 31, 2020 with their passport or national identity card - no visa is required. EU citizens who wish to remain in the UK after December 31, 2020, must submit an application to obtain European Temporary Leave to Remain (ETLR) status by that date. There are no skill or salary requirements to qualify for ELTR status. The application should be straightforward, consisting of identity, background and criminal checks. The ETLR status will be valid for three years, which cannot be extended (further details below). During the three year period, the individual may work for any employer in the UK or may choose to reside in the UK without working. In order to remain in the UK beyond three years, EU citizens must meet the criteria of the new immigration system in place at that time.

  • January 1, 2021: The government intends to introduce a new immigration system on January 1, 2021. The new system will be modeled on the points based system similar to that which currently exists in Australia. Specific details of the new immigration system will be announced by the UK government in due course.

What happens next?

Parliament is due to be suspended today until October 14th when MPs will reconvene for the Queen’s speech, which will set out he government’s legislative agenda. This is likely to be challenged in the courts. The EU leaders will meet in Brussels on October 17th and 18th. This two-day summit is the last meeting of the EU leaders before Brexit is due to take place on October 31st and the final opportunity to reach an agreement with the UK.

Under current legislation, the British Prime Minister is required to request an extension of the Brexit deadline by October 19th if no agreement between the UK and EU has been reached. However, given that there is uncertainty about whether this will happen or whether certain EU countries will veto any extension, employers should be prepared for the UK to exit the EU on October 31st under the no-deal provisions outlined above.

We will continue to monitor and report on developments in relation to Brexit as events unfold.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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