The Home Office has published new plans for EU immigration to the UK. The changes will apply after 31 October 2019 in the event of a no-deal Brexit.
This Insight explains the key points of the Government’s latest no-deal policy on EU immigration to the UK after 31 October. The below information does not apply to EU citizens resident in the UK prior to Brexit.
As this is a fast-moving policy area this Insight should be read as correct at the time of writing.
Ending free movement
On 19 August, the Home Secretary Priti Patel signalled her intention to end the free movement of EU citizens in the UK by way of secondary legislation. The Library published an Insight on those plans. After the announcement, media reports suggested that legal experts had told the Home Office that this plan was likely to fail in court, and that the Home Office was dropping it. On 4 September the Home Office published a new policy paper – “No deal immigration arrangements for EU citizens arriving after Brexit” – which sets out the status of ‘European temporary leave to remain’.
What is European Temporary Leave to Remain?
European Temporary Leave to Remain, or ‘ETLR’, was introduced as a policy under the May Government. ETLR was proposed as a new transitional immigration status for EU citizens and family members who arrive in the UK after a no-deal exit day. The Home Office re-announced the policy with some changes on 4 September, under the name of ‘Euro TLR’.
Euro TLR would be for “law abiding” EU and EFTA arrivals after exit day. The Home Office explains that Euro TLR will be granted for 36 months and can be applied for until 31 December 2020.
EU citizens and family members who hold Euro TLR can use this status as a “bridge into the new immigration system”. Someone with Euro TLR would still need to meet the criteria for leave under the future system. This means that holding Euro TLR may not be enough to secure the right to stay once the 36 months expire. As the Home Office said, “Euro TLR will therefore only provide a temporary stay in the UK for some EU citizens.” The Home Office is advertising Euro TLR as a “voluntary” status. Those who do not apply for Euro TLR (or status under the future immigration system) will be required to leave the UK by 31 December 2020. This means that, at least until 31 December 2020, EU citizens and their eligible family members can enter and reside in the UK after Brexit without the requirement to apply for any immigration status at all.
How does Euro TLR differ from ETLR?
The below table sets out the key features and key differences of Johnson’s Euro TLR policy as compared to May’s ETLR policy, based on published Government plans.
|May’s “ETLR”||Johnson’s “Euro TLR”|
|36 months leave to remain from the date of application||36 months leave to remain from the date granted|
|An application fee was proposed.||Applications will be free of charge for EEA nationals. Non-EEA family members will be required to provide biometrics for which there may be a fee.|
|Rights provided for under ETLR:||Rights provided for under Euro TLR:
|Open to EEA nationals and their close family||Open to EEA nationals and their close family|
|The scheme was to be introduced when free movement was repealed, if the UK left the EU without a deal||“You’ll be able to apply when the scheme opens after the UK leaves the EU without a deal.”|
|Application deadline: 31 December 2020||Application deadline: 31 December 2020|
|Online application where the applicant would need to prove their identity and declare any criminal convictions.||“Simple online process and identity, security & criminality checks”|
|Not specified whether time accrued on ETLR would count towards the qualifying period for settlement under the future immigration system||Time accrued on Euro TLR can be used towards the qualifying period for settlement under the future immigration system|
|Holders of ETLR would need to leave when status expires if not granted leave under future immigration system or risk becoming unlawful||Holders of Euro TLR will need to leave when status expires if not granted leave under future immigration system or risk becoming unlawful|
|Was to be introduced following the end of free movement to act as a ‘stop gap’ until the new immigration system was introduced and would therefore have been mandatory||Will be introduced whilst free movement rules are still in place and has therefore been described as voluntary|
|Digital status||Digital status|
Will free movement end on 31 October?
In the announcement on 4 September the Johnson Government acknowledged that:
“free movement as it currently stands under EU law will end on 31 October 2019. However, Parliament has provided that much of the free movement framework will remain in place under the EU (Withdrawal) Act 2018 until Parliament passes primary legislation to repeal it.”
Under the Johnson Government’s plan, EU nationals could continue to come to the UK under what is essentially retained free movement law until 31 December 2020. There would be no obligation upon them to regularise their status until 31 December 2020. Colin Yeo, an immigration barrister and blogger, explains:
“In legal terms, although this is nowhere actually stated in the policy, it looks like the Immigration (European Economic Area) Regulations 2016 which currently implement EU free movement law in the UK will be incorporated into UK law and continue in place whether the UK leaves with a deal or not. Almost exactly the same rules governing the entry and residence of EU citizens will therefore apply on 1 November 2019 as on 31 October 2019, come what may.”
It remains to be seen when the Government would introduce the primary legislation.
Along with the introduction of Euro TLR, the Home Office announced plans to “apply tougher criminality thresholds” on EU citizens, remove the dedicated EU customs channel at the UK border, ”remove the rights for post-exit arrivals to acquire permanent residence under retained EU law, and the rights for UK nationals who move to the EU after exit to return with their family members without meeting UK family immigration rules”, and introduce blue UK passports.
These changes are slated to happen before Parliament passes the primary legislation required to repeal the UK’s free movement law framework. The current deportation threshold for EEA nationals is set out in regulations which would become retained EU law under the European Union Withdrawal Act 2018.
The Government also reiterated prior commitments to protecting the Common Travel Area arrangements. This means Irish citizens will continue to have the right to enter, live and work in the UK without requiring immigration permission. The Government stated:
“The government will appropriately reflect this position in legislation ahead of the introduction of the new points-based immigration system”.
- Home Office policy paper – “No deal immigration arrangements for EU citizens arriving after Brexit’, 4 September 2019.
- Free Movement, ‘Free movement rules to continue after no deal Brexit’, 5 September 2019.
- Commons Library, ‘Using British passports in the EU after Brexit’, 23 August 2019.
- Commons Library, ‘No-deal Brexit, free movement and right to work checks‘, 10 September 2019.
About the authors: This Insight was written by Hannah Wilkins, an immigration and asylum researcher, and Melissa Macdonald, an assistant research analyst, at the House of Commons Library