Immigration was a key topic in 2016’s EU Referendum debate, and became a major selling point for the Leave campaign. Claims that European Courts were ‘attacking our borders’ and that the system was ‘out of control’ played to a view of an EU-driven UK immigration problem that leaving would solve.

Yet – as with many aspects of Brexit -  it is surprisingly unclear how law and policy will change once we leave the EU. As a recent BBC report shows, a measure of the Government’s success in neutralising the issue in the public perception is that it has dropped so far down the political agenda.

Business, though, is much less confident that Brexit will “fix” immigration.  It sees the nature of the problem, and the prospect of a solution, very differently, and worries about its ability to secure the migrants at all skill levels whose ready supply has been a given in recent years. Political uncertainty and a falling pound do not make us an attractive bet, either. In the short term, there will be challenges. Longer term, expect the unexpected.

With fewer than 20 working days to the increasingly wavering Brexit deadline, conflicting reports come daily. Sajid Javid claims that the Government will control the 'number and type' of people allowed to live and work in the UK. Migration Watch UK predicts a 100,000 increase in net migration. Statistics released in the last week show that while EEA migration has dropped sharply, non-EEA net migration is at its highest level for 15 years, with the Government further than ever from its target of “tens, not hundreds of thousands” a year.

So what is going on?

The general idea was that leaving the EU would allow the UK to ‘take control’ over immigration, implying more stringent restrictions on those coming to live and work here.

The reality is more nuanced.  Changes are being implemented, but they are not necessarily following the path that many predicted.

Control of our borders?

The UK, in common with every other EU member state, retained sovereignty over its borders irrespective of its EU membership.  We have always had our own immigration law and policy which, although shaped in part by global economic forces, is determined by our Parliament alone and is distinct from the law and policy, or the immigration system, of any other country.

Legal challenges to our immigration policy and decisions are upheld more frequently by our domestic courts than by the European Court of Justice. As part of that policy, we, like the other EEA countries, allow free movement – up to a point – of EEA nationals, including access to our labour markets.  The phased withdrawal of those freedoms is more or less the limit of new restrictions. Elsewhere, the Points Based System for non-EEA migration is set for an overhaul and a degree of relaxation and liberalisation which will open the labour market for some previously excluded. Loss of effective, integrated cooperation with our EU partners following Brexit will mean more pressure, not less, on “control” at the border itself – the last line of defence against illegal migration and the exploitation and economic damage it causes.

What is changing and when?

Rather less than some think:

Current arrangement for EEA nationals

At present, EEA and Swiss nationals continue to benefit from preferential free movement and labour market access provisions under EU law. 

This means that EEA nationals:

  • May continue to live and work in the UK without restriction and without the need for formal permissions from the UK Government.
  • May apply for a declaration that they are exercising treaty rights in the form of a registration certificate.

Non-EEA ‘third country’ dependent family members of EEA nationals who exercise EU ‘Treaty Rights’, for example by working in the UK:

  • May exercise rights similar to those of their EEA sponsor, but should apply before arriving and to extend their status when it is due to expire.
  • Should initially apply for an EEA family permit valid for 6 months, and then extend their permission in the UK via a residence card.

After 5 continuous years exercise of treaty rights as workers, EEA nationals and their third country dependants may apply for permanent residence in the UK, an essential prerequisite for applying for naturalisation as a British Citizen.

These are the arrangements being phased out and replaced by the EU Settlement Scheme.

The EU Settlement Scheme

The UK Government has committed to entitling EEA nationals and their family members to continue residing and working here on a similar basis, subject to a cut-off date for new arrivals which only a deal with the EU will set.  (Please see below for what happens in a no-deal siltation). As EU law provisions will be phased out in the UK after Brexit, a new ‘EU Settlement Scheme’ will operate fully from Brexit, in order to convert these rights into UK law – the scheme is already accepting applications from many eligible applicants.

EU citizens and any non-EEA ‘third country’ national family members already living in the UK when we leave will be able to apply for pre-settled or settled status within the UK, post-Brexit. They will do this through the EU Settlement Scheme which will allow them to continue living in the UK beyond 31 December 2020 (the current end of the ‘transition period’). They will apply for, and if successful be granted, settled status (the equivalent of permanent residence) or pre-settled status (the equivalent of the EU status leading to permanent residence after 5 years). If we leave the EU without a deal, those arriving after Brexit may have to apply for an alternative European Temporary Leave to Remain (ETLR). (Please see “Status definitions and conditions” below.)

Who must apply under the EU Settlement Scheme? 

EEA citizens and their family members who wish to continue living in the UK after we leave the EU. Family members may also include non-EEA citizens. This applies whether or not they have permanent residence.

Those who already have indefinite leave to remain in the UK or indefinite leave to enter the UK under the immigration rules will not need to apply for settled status. This applies to a relatively low number of people who acquired the status several years ago.

Scheme timeframe

The EU Settlement Scheme is due to open fully by 30 March 2019. The first non-pilot phase began on 21 January 2019, for EU nationals only.

The planned deadline for applying is 30 June 2021, as part of a deal which we may not get. Later applications may be accepted from overseas family members if the applicant is to join a UK-based family member with settled or pre-settled status in the UK. It will be brought forward to 31 December 2020 if there is a no-deal Brexit.

Application fees and qualification criteria

The Prime Minister announced on 21 January 2019 her intention to abandon the fee for applications made under the EU Settlement Scheme. The fee initially planned was £65 per adult, £30 per child. She had hoped that dropping it would help secure support for a Brexit deal.  

Applications will be particularly straightforward for applicants who:

  • already have indefinite leave to remain in or enter the UK
  • have a valid permanent residence document
  • are applying to move from pre-settled status to settled status
  • are a child in local authority care

Status definitions and conditions

Settled status will be granted to those who have lived in the UK for 5 years. This must be a ‘continuous period’, meaning that at least 6 months in every 12 are spent within the UK.

Once the settled status is obtained, the holder may:

  • stay in the UK for as long as they wish
  • apply for British citizenship if they meet the requirements listed
  • register any future children born in the UK as British citizens automatically
  • spend up to 5 years in a row outside of the UK without losing their settled status

Pre-settled status will be granted where the applicants have not spent a continuous period of 5 years inside the UK, but have begun to accrue rights.

Once Pre-settled status is obtained:

  • The holder can remain in the UK for a further 5 years from the date pre-settled status is granted
  • Spend up to 2 years in a row outside the UK without losing their pre-settled status
  • Apply for settled status for free once they have lived in the UK for a continuous period of 5 years (as defined above)
  • Any children born to a citizen with pre-settled status are automatically eligible for pre-settled status unless they have at least one parent who has:
    • British citizenship
    • Settled status
    • Indefinite leave to remain in, or to enter the UK
    • Right of abode in the UK

Both settled status and pre-settled status allow the holder to:

  • Work in the UK
  • Use the NHS
  • Enrol in education or continue studying
  • Access public funds such as benefits and pensions, if otherwise eligible
  • Bring family members to the UK after 31 December 2020
  • Travel in and out of the UK

Those who register successfully under the EU Settlement Scheme will have their EU rights converted in UK Law. Permanent residence is converted into settled status. Residence under EU rules that builds eligibility for permanent residence is converted to pre-settled status. Once registered, the status continues beyond any cut-off date for first-time applicants.

European Temporary Leave to Remain (ETLR) – the “no deal” plan

Applicable only in a “no-deal” Brexit

In the event of a no-deal Brexit, and subject to UK Parliamentary approval, a third status will be available to EEA nationals who first arrive after 29 March 2019 (or whatever later date is agreed). This is because, under “no deal”, post-Brexit arrivals will not be able to convert their status into pre-settled or settled status.

Immigration officers will be unable to distinguish between EEA nationals who were living and working in the UK before 29 March and those who arrived afterwards. This emergency provision will apply:

  • Until 31 December 2020, first time EEA arrivals will be admitted for up to 3 months. They may work and study. Immigration officers may use a new passport stamp to show this.
  • After 3 months, they must apply for and be granted European Temporary Leave to Remain for a further 36 months. They may work and study.
  • In theory, the last people to be granted ETLR will be able to use it until 31 March 2024. Note that it cannot be extended and – importantly – cannot be converted to pre-settled or settled status
  • Those with expiring ETLR will have to apply under new (not yet confirmed) arrangements for immigration status for non-UK nationals. This is likely to be an overhaul of the present Points Based System rather than a genuinely “new” system.

A new immigration system in 2021?

The publication of the Immigration White Paper in December heralded a new system but quietly pointed towards modification and re-packaging rather than wholesale change.  After all, the current Points Based System for non-EEA economic migration was finalised only a decade ago on the premise that it would bring certainty, fairness and objectivity to a complex and bureaucratic area. Employers were assured that it would be easier to operate while ensuring that only the economic migrants we really need would be able to access our labour markets. It was expensive to introduce then, and there is less public money now.

There is a striking lack of detail in the White Paper. The overall thrust, though, is toward a relaxation and liberalisation of controls, including the abandonment of the Resident Labour Market Test, the lowering of skills thresholds and special schemes for low-skilled work in areas such as hospitality, the care sector and horticulture where the loss of EEA free movement (and the disincentivisation of EEA migrants) will hit hardest.

Once the transition period is over, EEA nationals coming to live and work in the UK for the first time will have to apply through the “new” system.

It is hard to see how the pre-referendum manifesto pledge to reduce annual net migration to ‘tens of thousands’ will survive Brexit. A UK economy exposed to new headwinds and with less funding for skills training and wages will be more dependent than ever on migrant labour. The irony is that leaving the EU will, in the longer term, increase net economic migration to the UK, both legal and illegal, whatever people thought they were voting for.

About the author

Matthew Davies Partner

Matthew is an expert in business immigration law, advising employers, business people and investors on how best to navigate the complexities of the UK’s immigration rules and minimising delays, costs and risks in hiring talent from overseas.