After being installed as Home Secretary, Priti Patel, pounced on the opportunity to declare that free movement would end with a no-deal Brexit on 31 October 2019. She then made a u-turn. But her misguided comments caused a surge in applications under the EU Settlement Scheme and she subsequently doubled down on her position in her party’s conference by suggesting that she owed a “particular responsibility” to “taking back control”, adding that “it is to end the free movement of people once and for all.” Patel then bragged about initiating an Australian style points-based immigration system in the “best interests” of the UK and she sought to resurrect Theresa May’s failed policies of having a system “that attracts and welcomes the brightest and the best … that supports brilliant scientists, the finest academics and leading people in their fields.” The new No deal immigration arrangements for EU citizens arriving after Brexit policy paper published by the Home Office (5 September 2019) states that the UK will leave the EU on 31 October 2019 (but all this is subject to the European Union (Withdrawal) (No.2) Act 2019 which requires the government to ask for an extension to article 50 if there is no deal by 19 October 2019). The emergent position is that EU citizens who come to the UK after Brexit will have to obtain a 36-month temporary immigration status called European Temporary Leave to Remain (Euro TLR).
Patel’s initial announcements came immediately under attack and the shadow home secretary Diane Abbot said that the government’s immigration policy was riddled with “complete falsehoods” and accused the Conservatives of being “untrustworthy and incompetent”. The policy paper, on the other hand, stresses that “the new Euro TLR Scheme will be simple and free” and applications under it will be made after arrival in the UK. EU citizens travelling to the UK after Brexit will not need to make any special arrangements in advance. However, “some visible changes at the UK border” will occur and there will be “tougher rules for criminals but otherwise EU citizens will be able to cross the UK border as now.” Indeed, visible changes at the border have already occurred and I did not see any EU signs alongside the UK passports signs to the eGates when I returned to the UK from Karachi a few days ago, the EU signs and the stars of the EU flag are no longer there, they have been removed from the airport. The government is saying that it wants those EU citizens who are resident in the UK before 31 October 2019 and their family members to stay in the UK and they should apply under the EU Settlement Scheme (also known as the EUSS).
The immigration arrangements in the policy paper do cover EU citizens residing in the UK before 2300 hours on 31 October 2019 and their family members. Indeed, the policy paper reassures such individuals that they have until the 31 December 2020 deadline to apply to the EU Settlement Scheme if the UK leaves the EU without a deal and until that time (i) they can work and rent property by showing their passport/national identity card, and (ii) their rights to claim benefits and access services in the UK will remain unchanged. After Brexit, EU citizens entering the UK will benefit from the EU (Withdrawal) Act 2018 which allows the free movement framework to remain in place until Parliament actually repeals it by passing primary legislation. The UK will also apply much tougher UK criminality thresholds at the border, remove the blue EU customs channel, remove the rights for post-exit arrivals to acquire permanent residence under retained EU law, terminate rights flowing from Surinder Singh (C-370/90, EU:C:1992:296) and introduce blue UK passports by the end of 2019.
Border crossing arrangements will not be changed immediately and EU citizens will be able to enter the UK with a passport or national identity card (using the eGates if they are travelling on a biometric passport). The Home Office says that they will not face routine intentions testing but that they will be subject to security checks but will be subject to tougher rules on criminality and conduct after Brexit. During 2020 the use of EEA national identity cards for travel to the UK will be phased out.
After Brexit occurs, a transitional period will be operated from 31 October 2019 until 31 December 2020 to allow EU citizens and their family members to move to the UK and live, study, work and access benefits and services as they do at the present time. However, those moving to the UK after Brexit intending to remain beyond 2020 will need to apply for a UK immigration status granting them permission to remain here. The Euro TLR Scheme will operate online and it will facilitate future applications for EU citizens moving to the UK after exit. This is seen as enhancing confidence and certainty for applicants and their employers during the transition period, and ensuring that the relevant individuals have obtained a secure legal status in the UK before the new immigration system is introduced from January 2021. Like the grants under the EU Settlement Scheme, the new Euro TLR status will be conferred in the form of a secure digital status and will allow holders to work and rent property during the transitional period until 31 December 2020. EU citizens who qualify for leave under the future immigration system in a route that leads to indefinite leave to remain here will be able to use any time spent in the Euro TLR immigration status towards the qualifying period for settlement.
From January 2021 the UK will begin operating an “Australian-style points-based immigration system”. This is a strange way to put it given that the UK already has its own points-based system under the Immigration Rules. The present system is very restrictive and protects local workers against foreign workers so there is scope for loosening its mechanisms. Notably, the Migration Advisory Committee is reviewing the Australian system and other international frameworks to identify the best practice standards which can be used in order to strengthen the UK’s labour market. The Home Office says that it will introduce a new, fairer immigration system prioritising skills and identify the correct people who can contribute to the UK rather than rewarding people for where they came from.
The Home Office explains that EU citizens who move to the UK after Brexit who do not hold Euro TLR will need to apply under the new immigration system by 31 December 2020 if they wish to remain in the UK after that date. Holders of Euro TLR will have access to the new immigration system. Those wishing to stay will have to switch into the future points-based immigration system upon the expiry of their 36 months’ Euro TLR leave but they will also have the option of applying for status under the new system earlier if they so desire. Those who fail to satisfy the necessary conditions under the new system or otherwise have a right to remain in the UK will be expected to leave the UK when their Euro TLR expires. Accordingly, Euro TLR is meant to only provide a temporary route to remain in the UK for some EU citizens. Those who are allowed to stay under the new points-based immigration system in a route that leads to indefinite leave to remain in the UK will be able to rely on their 36 months’ Euro TLR towards the qualifying residence period for settlement (usually five years).
EU citizens and their family members coming the UK after 31 October 2019 will need to have applied for a UK immigration status by 31 December 2020 and such a status can be obtained either as Euro TLR or under the upcoming points-based immigration system. Those falling outside these alternatives will be in breach of UK immigration law and will be subject to enforcement action and they will be liable to detention and removal. The Home Office stresses employers, landlords and other third parties will not be required to distinguish between EU citizens who moved to the UK before or after Brexit until the points-based immigration system finally arrives in January 2021.
The Home Office explains that until 31 December 2020 EU citizens’ right to work or rent will be verifiable by using a passport or national identity card. It will also be possible for EU citizens to use digital status, granted under the EU Settlement Scheme or under the Euro TLR scheme, to prove their residence rights using the Home Office’s digital status checking service which will enable holders to share their digital status securely with an employer or other third party who needs to see it. Their non-EU citizen family members will be able to rely on a biometric immigration document to prove their entitlements and rights and also rely on the digital status checking service where they wish to do so.
From January 2021, under the new points-based immigration system a national identity card or an EU passport will not suffice as proof of valid UK immigration status. Employers will need to conduct checks in respect of any new recruitment or new provision of service that an EU citizen has a valid UK immigration status. Such checks will not be done retrospectively and will be undertaken when the said person applies for a new job, bank account or tenancy etc.
Third-country national core family members (spouses, civil partners or children) and extended/other family members (durable partners and dependent relatives) who move to the UK with their EU citizen sponsors after 31 October 2019 must have a valid national passport and an EEA family permit and will be able to stay in the UK until the end of 2020. Core family members (spouses/partners and dependent children under 18) will be able to apply for Euro TLR once their EU citizen sponsor has applied under the scheme. The process will be the same as EU citizens and biometrics will be required and the Home Office explains that close family members who do not obtain Euro TLR by the end of 2020, and who do not otherwise have a right to remain in the UK, will be expected to exit the UK at that point. The Home Office explains that, after 31 October 2019, EU law will no longer provide a route for the family members of UK nationals who move to the EU after that date to return with them to the UK.
Therefore, for UK nationals who move to the EU after 31 October and return to the UK with their non-British, non-Irish family members, such family members will need to meet the UK’s Immigration Rules under Appendix FM. The Home Office has said that the current route reflecting EU law will remain open until 29 March 2022 for existing close family members of UK nationals who were resident in the EU27 before exit.