Status of European nationals in the UK after the end of the transition period
EEA nationals and their family members currently benefit from a right of free movement which gives them the right to live and work in the United Kingdom. It is the Government’s intention to end free movement after the end of the transition period, on 1 January 2021. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill provides the mechanism for doing this. When free movement ends, EEA nationals and their family members will no longer have rights derived from European law. As such, they must secure status under domestic legislation.
On the whole, relevant domestic provisions for the entry and residence of overseas nationals in the UK are contained within the Immigration Rules. These include the legal framework for The EU Settlement Scheme. This provides the mechanism for European nationals and their family members who arrive in the UK prior to 31 December 2020 to secure immigration status under domestic legislation.
All EEA nationals arriving in the UK from 1 January 2021 (who are not otherwise within the scope of the EU Settlement Scheme) will be subject to the Immigration Rules, meaning that new European arrivals will, on the whole, require visa status to work lawfully in the UK. The Immigration Rules are due to be significantly amended in readiness for 1 January 2021.
EEA nationals and their family members who arrive on or before 31 December 2020 will have until 30 June 2021 to register on the EU Settlement Scheme. Under this Scheme they will be able to secure pre-settled status (limited leave to remain) or settled status (indefinite leave to remain) to continue living lawfully in the UK. The period between 31 December 2020 and 30 June 2021 is known as the grace period. If they have not secured status under domestic legislation by 31 December 2020, they could technically have no immigration status under domestic legislation and no right of free movement under European law. However, the Withdrawal Agreement provides protection for these EEA nationals and their family members who will have their existing right of residence protected under the Agreement until 30 June 2021. The EU (Withdrawal Agreement) Act 2020 (“EU(WA)A 2020”) provides the power for regulations to be issued which will have the effect of providing protection to people who are eligible to apply for status on the EU Settlement Scheme but who have not yet done so.
The Explanatory Notes to the EU(WA)A 2020 confirm as follows:
‘The Government intends that regulations under subsection (1)(b) to (g) will give effect to the relevant provisions in the Agreements largely by saving the necessary components of the existing regime in the EEA Regulations 2016 that protect the rights of EU citizens, EEA and EFTA nationals under the Free Movement Directive, and Swiss nationals under Annex I of FMOPA during the grace period and pending resolution of individual applications for status under the EU Settlement Scheme.’
The Home Office does not intend to amend right to work guidance before end June 2021 and has stated it does not intend to undertake enforcement action against employers of EEA nationals during this period. In its policy statement of 19 January 2020, the government stated:
‘employers, landlords and public service providers will continue to accept the passports and national identity cards of EU citizens as evidence of permission during this period, up until 30 June 2021’
During this period employers can continue to carry out right to work checks as they do now.
It is anticipated that right to work guidance will be changed in readiness for the 30 June 2021 deadline, to incorporate the mandatory requirement for EEA nationals and their family members to hold immigration status, whether that is limited leave to remain or indefinite leave to remain secured under the EU Settlement Scheme sections of the Immigration Rules or a visa issued to a new arrival under the relevant Immigration Rule.
Head to our Brexit Exchange where you will find all the latest updates and developments from our experts, regarding Brexit and how that affects businesses and individuals in a range of areas.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
‘Doing the right thing’ is at the heart of Freeths. Find out more about our excellent client service and the strong set of values that guide the way we work.
Talk to us
Freeths are a leading national law firm with 13 offices across the UK. If you have a query about our services or just want to find out more, why not give us a call?
Contact: 03301 001 014