Brexit: where are we now on immigration?

What action can employers and individuals take immediately?

Employers and individuals may wish to consider making arrangements for any planned moves to the UK to be brought forward so that the EEA/Swiss citizen enters the UK before 31 October 2019. This will ensure they are eligible to apply under the EU Settlement Scheme in the event the political attempts to avoid a no deal Brexit on 31 October fail.

In addition, if the UK does leave the EU without a deal on 31 October, the person should ensure they do not spend more than six months in any 12 months outside the UK following the date of their initial entry. There is provision for a single period of 12 months outside the UK to be ignored for settlement purposes, however this must be for an important reason such as childbirth, a serious illness, study, vocational training or an overseas work posting.

For intended moves for British citizens to the continent, immigration advice should be sought relating to the options and actions to take on a country-by-country basis.

EU Settlement Scheme update – ID checks can now be made using an iPhone

In a welcome and long-awaited development, on 18 October the Home Office released a beta EU Settlement Scheme ID document check App for iPhone users. The app will work for iPhone 8 or later models, and will work for iPhone 7 and 7 Plus after an IOS update due to be rolled out shortly.

The availability of the app on iPhone should make the EU Settlement Scheme application process more straight-forward for a greater number of applicants and reduce the need for people to attend a document scanning location.  

How is the Johnson deal different from the May deal?

On immigration, nothing is different in the draft Withdrawal Agreement aside from some changes being made to wording in the Ireland/Northern Ireland Protocol on the Common Travel Area. This just clarifies that the UK and Ireland must not make any arrangements in the Common Travel Area during the transition period that would affect the rights and privileges of EU citizens under European Law, and in particular their rights of free movement, to, from and within Ireland.

In the non-binding political declaration, there are no changes relating to mobility specifically. Commitments include a requirement for the UK to treat all EU citizens without discrimination in mobility matters, facilitating business travel and visa-free travel for short-term visits and protecting the operation of the Common Travel Area. However, the revised paragraph aiming for there to be a level playing field for open and fair competition could lead to the UK being restricted from granting more favourable mobility arrangements to trading partners than those available to the EU.

What would leaving under Johnson’s deal mean from an immigration perspective?

• There would be a ‘transition period’ from exit day to 31 December 2020, during which EEA/Swiss nationals and their family members would be able to enter, reside and work in the UK on the same basis as before exit
• EEA/Swiss nationals would be eligible to apply under the EU Settlement Scheme if they arrive in the UK by the end of the transition period, rather than having to arrive by the date of exit in a no deal scenario
• The main deadline for applying in the UK under the EU Settlement Scheme (EUSS) would be 30 June 2021, instead of 31 December 2020 in a no deal scenario
• Close family members of EEA/Swiss nationals with status under the EUSS who are living abroad would be able to apply under the EU Settlement Scheme after the end of the transition period, with no deadline, provided the relationship existed before the end of the transition period and still exists at the time they apply
• Children born to an EEA/Swiss either in the UK or abroad after the end of the transition period would be eligible to apply under the EU Settlement Scheme with no deadline
• The trade agreement between the UK and the EU would be negotiated during the transition period and would be taken into account in the new immigration system due to be in place from 1 January 2021
• British nationals would be able to enter, reside and work in the EEA/Switzerland under free movement rules until the end of the transition period
• Immigration to the EEA/Switzerland for British nationals after the transition period would be negotiated with the EU and the other relevant countries

Immigration Bill

If the current Government remains in power for any length of time, or if a Conservative Government is returned following a general election, the Immigration Bill announced in the Queen’s Speech on 14 October (or a similar bill) will make its way through Parliament.

The bill envisaged by the current Government covers the same areas as the one that fell away due to Parliament being prorogued:

• Ending free movement of persons – this is critical because until the bill is passed and commenced, free movement arrangements will continue to apply in the UK
• Clarifying the UK immigration status of Irish citizens once free movement has ended
• Social security coordination for EU nationals

New features that were not present in the previous bill include:

• Powers to treat EU citizens arriving from January 2021 in the same way as non-EU citizens
• Maintaining the treatment of EU citizens resident in the UK before exit day - it remains to be seen whether this would provide any safeguards for EU citizens who fail to apply under the EU Settlement Scheme before the relevant deadline
• Confirming the deadline for applications to be made under the EU Settlement Scheme – this could prove controversial unless it is proposed the deadline itself is set out in secondary legislation
• Providing a right of appeal against EU Settlement Scheme decisions

Whether and when this bill is introduced to Parliament will depend on how Brexit-related matters unfold over the coming days and weeks.

No deal Brexit

Although Parliament is doing its level best to avoid this situation, it is still not excluded as a possibility. Our analysis of what this would mean for immigration is available here.

How can we help?

We appreciate that the immigration needs of employers and individuals may be complex and require in depth assistance due to Brexit. For specific queries, please contact a member of the Immigration Team.

For HR professionals, we are running an Immigration Law Academy on 25 November, where we will offer an in-depth look at Brexit, alongside sponsoring migrant workers and preventing illegal working.

We are also able to provide a range of toolkits, training and onsite support for businesses under our Immigration Solutions for Brexit.