What are the implications of Brexit for immigration?

Since the end of the Brexit ‘implementation period’ at 11 pm on 31 December 2020, EEA nationals and their family members no longer benefit from freedom of movement to the UK, and nor do British nationals and their family members travelling to the EEA.

Detailed Immigration Rules for the work categories of the UK’s new system came into effect for non-EEA national workers from 1 December 2020. These also apply to EEA national workers and their family members after 31 December 2020. New guidance for sponsors has been made available in relation to the new immigration categories. The new system has already been subject to numerous revisions and expansions, and this is expected to continue.

Key points to note for EEA/Swiss nationals travelling to the UK

• The arrangements between the UK and Ireland have not substantially changed following the end of the implementation period, due to the continuing existence of the Common Travel Area. These rights have been further formalised in the UK under the Immigration and Social Security Coordination (EU Withdrawal) Act 2020, allowing Irish citizens to enter and remain in the UK without restriction unless limited circumstances (such as a deportation order) apply.

• Although the main 30 June 2021 deadline has now passed, EEA/Swiss nationals may still be eligible to apply under the EU Settlement Scheme (EUSS) if they arrived in the UK by the end of the implementation period – this may not be a straight-forward matter for some individuals, eg those who attempted but failed to enter the UK, or those who have previously resided in the UK but have spent substantial time abroad, especially during 2020 due to the COVID-19 pandemic as they may have broken the continuity of their residence in the UK as a result. All applicants must also demonstrate there are reasonable grounds for the delay in applying.

• Irish nationals who started residing in the UK before the end of the implementation period can apply under the EU Settlement Scheme but are not required to do so

• Close family members of EEA/Swiss nationals with status under the EUSS, or who are exempt from immigration control, or who are frontier workers are able to apply under the EU Settlement Scheme after the end of the implementation period, with no deadline, provided they were living abroad at the end of the implementation period, the relationship existed before the end of the implementation period and the relationship still exists at the time they apply

• Children born to an EEA/Swiss national either in the UK or abroad, or who are adopted after the end of the implementation period are eligible to apply under the EU Settlement Scheme with no deadline.

• The spouse or civil partner of a Swiss national is eligible to apply under the EUSS with no deadline if the marriage or civil partnership is contracted between 1 January 2021 and 31 December 2025, and continues to exist at the time of application.

• Since the end of the implementation period, EUSS participants with limited leave must sponsor new family members under the Immigration Rules for family members (aside from the provisions for the spouse or civil partner of a Swiss national outlined immediately above).

• A new immigration route has been put in place since 1 December 2020 to allow eligible service providers from Switzerland to come to the UK for work for up to 90 days per calendar year.

• A frontier worker permit scheme opened on 10 December 2020 to enable individuals who work or are self-employed in the UK but resident abroad to continue this pattern of activity as a person who is exempt from immigration control.

• Following the conclusion of the UK-EU Trade and Co-Operation Agreement, from the end of the implementation period EU national contractual service suppliers and independent professionals in specific sectors may apply under the Global Business Mobility – Service Supplier route (previously the Temporary Worker – International Agreement route) to come to the UK for up to 12 months to fulfil a service supply contract with a UK final consumer.

• Following the conclusion of the Temporary Agreement between the UK and Switzerland on Services Mobility, from the end of the implementation period Swiss national and Swiss permanent resident contractual service suppliers and independent professionals in specific sectors may apply under the Global Business Mobility – Service Supplier route (previously the Temporary Worker – International Agreement route) to come to the UK for up to 12 months in any 24 months to fulfil a service supply contract with a UK final consumer.

• All other EEA/Swiss nationals and their family members arriving in the UK for the first time on or after the end of the implementation period must meet the requirements of the UK’s post-Brexit immigration system, the visitor provisions of which have been slightly amended to allow visiting market researchers and analysts to carry out market research or analysis in the UK for an overseas enterprise; to allow visiting scientists and researchers to do independent research in the UK for their employment overseas; and for visiting translators and/or interpreters to carry out translation and/or interpretation services for their overseas employer.

• Right to work checks for EEA/Swiss nationals and their family members were substantially revised from 1 July 2021.

Key points to note for British nationals returning to the UK after living in the EEA or Switzerland

• Only British nationals who exercised rights of free movement in the EEA or Switzerland before the UK’s exit from the EU on 31 January 2020 have been able to use EU case law (known as the Surinder Singh route) to bring their non-British family members with them when they return to the UK.

• In order for a family member to be eligible under the EUSS, the British national and the family member must have returned to the UK by 29 March 2022 and make the EUSS application for the family member by this date (unless reasonable grounds for meeting this deadline are accepted by the Home Office).

Key points to note for Turkish workers and businesspeople travelling to or living in the UK

• The UK is no longer bound to observe the European Community-Turkey Association Agreement and its protocols (Turkish ECAA) since the end of the implementation period.

• Since the end of the implementation period, those who have not previously relied on the Turkish ECAA as the basis of their residence in the UK must meet the requirements of the post-Brexit immigration system.

• Applications were still processed for Turkish workers, Turkish businesspersons and their family members who made applications relying on the Turkish ECAA before the end of the implementation period.

• Those who started residing in the UK in accordance with the Turkish ECAA before the end of the implementation period are able to extend their stay on the same basis as under the Turkish ECAA and continue to be able to apply for indefinite leave to remain, normally after five years’ qualifying residence.

• Since the end of the implementation period, Turkish workers and businesspersons must sponsor their partner and/or children under the Immigration Rules for family members.

Key points to note for British nationals travelling to the EEA and Switzerland

• British nationals continuing to reside in the EEA (other than Ireland) or Switzerland since the end of the implementation period must to comply with the requirements of the national government under the relevant country’s EU Settlement Scheme equivalent.

• Immigration to the EEA/Switzerland for British nationals after the implementation period is subject to the domestic law arrangements of those countries.

• British nationals intending to visit the EEA (other than Ireland) or Switzerland since the end of the implementation period must have at least six months remaining on their current passport (excluding any period the passport is valid for in excess of ten years) and must ensure they do not stay in the Schengen area for more than 90 days in any 180-day rolling period. The Schengen area currently includes Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland.

• British nationals intending to visit the EEA (other than Ireland) since the end of the implementation period must meet the COVID-19 travel requirements for the relevant country as they apply to non-EEA nationals in general, as well as any specific requirements that apply to British nationals specifically.

• Once the European Travel Information and Authorisation System (ETIAS) is implemented.

What actions can be taken from a UK immigration perspective?

• Advice should be sought on whether the EU Settlement Scheme or frontier worker permit provisions may be applicable prior to making an application under other provisions of the Immigration Rules.

• Consideration should be given to applying for a sponsor licence or increasing the allocation of Certificates of Sponsorship under an existing licence to cater for EEA/Swiss national hires.

• Employers should consider participating in stakeholder engagement opportunities offered by the Government, the Migration Advisory Committee and other relevant bodies as part of the further development of the UK immigration system.

What actions can be taken from an EEA/Swiss immigration perspective?

• British nationals and their family members who were living in the EEA or Switzerland before the end of the implementation period should ensure they understand the visa/residence permit requirements to enable them to remain after 31 December 2020, including any provisions for late applications and any allowances for travel disruption during the pandemic.

• British nationals intending to visit the EEA or Switzerland should ensure they understand the requirements, including any restrictions on passport validity, activities and length of stay.

• British nationals and their family members intending to enter the EEA or Switzerland for non-visit purposes should ensure they understand the visa/residence permit requirements, including timing and cost, before travelling.

How can we help?

We are able to offer advice to individuals on their immigration options in the UK and across the EEA and Switzerland. Also, through our Immigration solutions for HR, we can help businesses and their individual employees to understand the current UK immigration system so that EEA/Swiss nationals can be employed lawfully in the UK. We can also suggest strategies to maintain British employees’ ability to work on the continent.

We also have a useful international Brexit guide which has been produced by our Ius Laboris Brexit taskforce. In the guide we provide: guidance on the immigration implications of the UK’s trade deals with the EU and Switzerland (comprehensive free trade agreements including immigration have not yet been concluded with Iceland, Liechtenstein and Norway); business travel; employment and residence; frontier workers; permanent residence and securing residence & work status. The international Brexit hub also includes insights and updates on the latest Brexit developments from around the globe.