IMPACT – HIGH

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

  • EU nationals will be able to travel to and enter the U.K. using a biometric passport or ID card on the same terms as they currently do, including using e-gates, during a transition period until Dec. 31, 2020.
  • To achieve a frictionless border, EU nationals passing a security check will automatically be given three months’ “leave to enter” the U.K. at no cost. (Multiple entries would also be possible, as is currently the case with visitors from visa-waived countries such as the United States).
  • Non-EEA family members will need to apply for a family permit prior to travel to the U.K., as they currently do.
  • EU nationals wishing to remain in the U.K. for more than three months must apply for a new type of permit—European Temporary Leave to Remain, or ETLR—and will be required to pay a (currently undetermined) fee.
  • ETLR will be a temporary, non-extendable visa that has no skill level or salary requirement and is available for 36 months only. Time spent in this status will not count toward an application for indefinite leave to remain.
  • 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 may be refused.
  • EU nationals due to remain in the U.K. for more than three years will need to apply for a further visa once the U.K.’s new skills-based immigration system is launched on Jan. 1, 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 U.K. as of March 29, 2019 will have until Dec. 31, 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. There will be no significant changes to the right-to-work regime, meaning that EU nationals’ right to work will continue to be based on their passport or national identity card alone. Employers will only need to check new EU employees’ status starting Jan. 1, 2021 once the new skills-based system is launched, and will not need to check existing employees retrospectively.

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

It is important to note that in any scenario, Irish nationals will continue to have the right to enter and live in the U.K. 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. Moreover, the rules for EU nationals will be applied equally to nationals of EEA countries (Norway, Iceland and Liechtenstein) and to Switzerland.

Analysis & Comments: Employers have known for weeks that, whether or not there is a deal, the EU Settlement Scheme will protect EEA nationals living in the U.K. prior to March 30, 2019. However, the position for new assignees arriving in the U.K. post-Brexit has been unclear until now. 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 U.K. on the same terms and at no cost, will have to obtain a temporary visa with a fee in order to stay beyond three months. If they are staying more than three years, they would then need to follow with an application under the U.K.’s new single immigration system once it is launched. Employers must therefore 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 U.K., the ETLR permit holders. However, the fact that right-to-work checks will continue to be based on passports, ID cards, and biometric residence cards alone means that employers should not have to adapt right-to-work checks at short notice.

Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.