13 September 2019

Having backtracked on its pledge to end free movement on 31 October 2019, the new government finally published its plans for no-deal Brexit last week. Whilst the plans appear to be very similar to those devised by Theresa May’s government, there are some notable – and positive – differences.  

European Temporary Leave to Remain Scheme (Euro TLR)

The UK will continue to allow EEA/Swiss citizens entering the UK for the first time after 11pm on 31 October 2019 to live and work in the UK until the end of the previously envisaged transition period on 31 December 2020.

EEA/Swiss nationals would be able to continue to use just their original valid passports (or for an initial period at least, their national ID cards) to travel to the UK and to prove their right to work in the UK.

Consequently, until 31 December 2020, employers will not have to differentiate between EEA/Swiss nationals who arrived before or after Brexit and can continue to accept EEA/Swiss passports or national ID cards as proof of the right to work.

Those wishing to stay beyond 31 December 2020 will be expected to apply under the new European Temporary Leave Scheme (Euro TLR) for a 3 year-permission to remain in the UK. Leave granted under the scheme would be from the date of grant (not the EEA/Swiss national’s initial entry to the UK) and will be evidenced digitally, in a similar format to the EU Settlement Scheme (EUSS) which is applicable to EEA/Swiss nationals in the UK prior to Brexit.

Euro TLR status is not renewable or extendable beyond 3 years and EEA/Swiss nationals will therefore need to qualify under a different immigration category (or leave the UK) at the end of the 3 year period.  For many workers, this is likely to mean applying under Tier 2 (General) (or equivalent scheme in place at the time).  However, time spent with Euro TLR status can be amalgamated with time under any other immigration category that leads to settlement (such as Tier 2 (General) or Tier 1 (Investor)) for the purpose of accruing five years’ continuous residence in the UK towards indefinite leave to remain (ILR) (see example below).

Example

Erik enters the UK after no-deal in November 2019 and decides he wishes to stay for at least five years. He applies for and is granted Euro TLR status in September 2020, valid until September 2023. In August 2023, Erik applies for and is granted leave as a Tier 2 migrant valid until 2028. Erik would (subject to meeting all other criteria) be eligible to apply for ILR from September 2025 and naturalise as a British citizen a year later (or immediately upon obtaining ILR if married to a British citizen).

So, what has changed?

Surprisingly, after spending weeks advocating a more hard-line approach, the new government has actually watered-down Theresa May’s previous plans in two significant ways:

• unlike its original incarnation, the Euro TLR would not require migrants to apply for status within three months of entering the UK, but would instead only apply to those wishing to remain in the UK after 31 December 2020. As a consequence, the Euro TLR scheme has been described as ‘voluntary’; and
• time accrued under the Euro TLR can count towards indefinite leave to remain when amalgamated with another eligible category (see above example).

EEA/Swiss nationals arriving from 1 January 2021

EEA/Swiss nationals arriving from 1 January 2021 will fall under the new immigration system, which is expected to apply equally to EEA/Swiss and non-EEA/Swiss nationals. As the new system is currently subject to a consultation by the Migration Advisory Committee, businesses are encouraged to make their view known.

How we can help

Laura Devine Immigration’s award-winning team of lawyers can help businesses and individuals navigate the changes ahead as the UK prepares to withdraw from the EU. From intelligent and thoughtful advice and representation during the application process to strategic pre- and post-Brexit immigration planning, Laura Devine Immigration is here to assist you.

For further information on our Brexit services and the potential implications of the UK’s withdrawal from the EU for employers and EEA/Swiss nationals, please contact your assigned lawyer or email EUenquiries@lauradevine.com.