- 8 minute read
- Last updated: 25th October 2019
The government has published further guidance on planned changes to the UK immigration rules in the event Britain leaves the EU on 31st October 2019 with ‘no deal’. Without an agreement with the EU in place, should the UK leave the European Union on 31st October, a new European Temporary Leave to Reman route will be introduced to facilitate the transition from pre-Brexit rules to a new UK immigration system, scheduled to take effect from January 2021.
This article covers:
- What is European Temporary Leave to Remain?
- What does Euro TLR mean for employers?
- No deal changes to EEA conduct & criminality thresholds
- No deal changes to EU settlement scheme
EU free movement in its current form will end when the UK leaves the European Union. In support of the transition, under Part 2 of Appendix EU, the European Temporary Leave to Remain scheme will come into effect in the event of a no deal Brexit on 31st October 2019.
ETLR should enable EEA citizens and their qualifying family members to obtain lawful immigration status in the UK in the period between the UK’s no deal exit from the EU and the implementation of a new UK immigration system, scheduled for January 2021.
With ETLR, individuals will be permitted to work and study in the UK for a temporary period of up to 36 months from the date of the grant of leave.
Non-EEA national close family members such as spouses, partners and children under the age of 18 who are in the UK lawfully other than as a visitor can also apply for European Temporary Leave to Remain. Leave will be granted for the remaining duration of the Euro TLR held by their EEA relative.
According to the government’s announcement, applications for the new scheme will be open from 4 December 2019.
Applications will be made online and will entail security and criminality checks and verification of the applicant’s identity. Applications should be made from within the UK and there will be no cost to apply.
It will not be possible to extend Euro TLR. To remain in the UK lawfully after the period of European Temporary Leave to Remain, status holders will be required to have attained a right to remain in the UK or to make an application under the new points-based immigration system. Without lawful status, the individual will have to leave the UK on expiry of their Euro TLR.
Where an application for a new period of leave is successful, and this route leads to UK indefinite leave to remain, the period under European Leave to Remain may be counted towards the required residence period for settlement.
Changes to the UK immigration rules, both in relation to the no deal exit and during the transition period and beyond, will undoubtedly affect how employers recruit and onboard EU citizens.
With Euro TLR granting only time-limited permission for individuals to remain in the UK, this will be a significant concern for businesses looking for longer-term workforce solutions.
In addition, at the end of this period, the individual must either leave the UK or apply to remain under a different visa route. It will not be possible to extend this leave. This could present immigration compliance risks for employers who remain under legal duties to verify the immigration status and Right to Work of all employees, regardless of nationality.
At this stage it will also be extremely difficult to gauge the likely success rate of applications, and as such, the impact the new scheme will ultimately have on the availability of EU workers in the UK.
With so much change ahead, both imminent and in the medium term, employers are advised to review and adapt their recruitment strategies, budgets and policies in light of expected restrictions on EU worker access to avoid disruption to employee supply and maintain competitive advantage when accessing international talent markets and to ensure compliance with new rules as they take effect.
Steps should be taken to reassure existing EU national workers through this period of change. With the new EU Settlement Scheme now fully open, employers are encouraged to ensure existing EU employees feel supported through the process, not least to minimise EU staff attrition. Measures could include offering settled status presentations and sharing guidance materials.
The changes are also likely to create training needs for business owners, HR, line managers, supervisors and other personnel responsible for recruiting and onboarding, to avoid frontline breaches and unlawful practices.
In addition to the introduction of the European Temporary Leave to Remain, if the UK leaves the EU on a no deal basis, UK conduct and criminality thresholds will be applied to EEA citizens and their family members moving to the UK after Brexit. The thresholds will be used when determining suitability under the Euro TLR provisions, and when considering the refusal of entry, deportation and exclusion of EEA citizens and their family members, and when considering the cancellation and curtailment of leave granted to EEA citizens and their family members.
The thresholds will be applied to the post-exit conduct of EU citizens living in the UK immediately before Brexit or who have EU settled status, and their family members, and to their pre-exit conduct where their conduct after exit results in a sentence of imprisonment.
The EU Settlement Scheme allows eligible individuals to apply for permanent lawful status to remain in the UK after Brexit, in either a deal or no deal scenario. It is open to UK resident EEA citizens and their family members, and the family members of certain UK nationals.
Under existing provisions, a no deal Brexit will impact access to the EU Settlement Scheme for certain categories of family members joining an EEA citizen resident here before Brexit. In response, the government also announced that applications by such family members will, in the event of a no deal, be able to rely on residence in the UK which began after Brexit.
These applications will need to be made by 29 March 2022, where the relationship existed before Brexit and continues to exist when the application is made, in the case of spouses, civil partners, durable partners, children, parents and grandparents, and of children born overseas after Brexit; or by 31 December 2020, where the relationship as a spouse, civil partner or durable partner was formed after Brexit and continues to exist when the application is made, or from other dependent relatives.
The deadline in a ‘no deal’ scenario for applications by existing family members overseas at Brexit, who wish to rely on pre-exit residence in the UK and Islands in applying for status under the EUSS, will be 31 December 2020. This is also the deadline for applications by those in the UK at Brexit. There are provisions for late applications where there are reasonable grounds for the delay, or they may be able to return to the UK by 29 March 2022 and apply then, based on post-exit residence, for status under the scheme.
DavidsonMorris are specialist UK immigration lawyers. We work with UK employers to support with post-Brexit workforce planning, management and recruitment strategies to minimise impact and identify opportunities for advantage. We also provide specialist guidance to EU nationals in the UK concerned about their immigration status or that of their relatives.
If you have a question about the new European Temporary Leave to Remain, contact us.