The Johnson ‘government’ has reaffirmed that free movement rules will continue if the UK leaves the EU without a deal on 31 October. A new voluntary (Ed. – !?!) immigration scheme will be introduced called the European Temporary Leave to Remain Scheme, or “Euro TLR” to its (few) friends. From 2021, the policy paper effectively admits that all EU citizens, whenever they entered, will be subject to the hostile environment. As the new policy paper puts it, ‘they will be here unlawfully and will be liable to enforcement action, detention and removal as an immigration offender.’

The formal announcement was made on 4 September 2019 and ends a period in which hastily and anonymously briefed newspaper articles substituted for a clear written policy affecting the lives and futures of over 3.5 million EU citizens already living in the UK. You can see the relevant new gov.uk pages here, Home Secretary Priti Patel’s written statement to Parliament here and the press release here.

As an aside, the old policy was still live on gov.uk at the time of writing (archive copy here). The new policy is virtually identical except that it seems more generous. For example, the old policy said that newly arrived EU citizens would have to apply for leave if they intended to stay longer than three months, whereas the new one says they do not need to apply at all. The old policy said there would be no route to settlement but the new policy is less clear on this. As we’ll see below, these changes are presumably because the old policy was even more unenforceable than the new one.

What happens in law on 31 October 2019?

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. This is achieved through sections 2 and 3 of the European Union Withdrawal Act 2018. 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. This means that EU citizens entering after Brexit will not need to apply for a visa or for any new status and will be able to come and go from the UK, work and study at will.

The previous May government passed the Immigration (European Economic Area Nationals) (EU Exit) Order 2019/686 on 26 March 2019, which would have come into effect on the original Brexit Day (31 March 2019) and on revocation of the Immigration (EEA) Regulations 2016. It has not in fact yet come into force and now perhaps never will, at least without being amended. Article 3 of this Order provided for EEA and Swiss nationals to obtain three months’ leave to enter automatically, after exit day, if they presented their passport or ID card to an immigration officer or an automated gate at a port of entry.  The new policy is for 36 months of leave to be granted, but only on request, not automatically.

Under the new policy, the only immediate change on the new Brexit Day (at time of writing, 31 October 2019) will be the introduction of tougher criminality and public policy rules, which will apply to new entrants only. The UK’s existing very strict deportation regime will apply to these new entrants immediately. Other changes that will be introduced at unknown future dates are the abolition of special queues for EU citizens to enter the UK and the introduction of a requirement to use a passport rather than an ID card.

In technical terms, EU free movement law will not continue but EU free movement rules will on the whole continue. This is because EU law will in legal and constitutional terms cease to apply in the UK after Brexit, whether or not the UK leaves with a deal. However, the UK is indicating that much of what EU law currently says will be incorporated into UK law instead, so that we won’t notice much difference, at least to begin with.

The legal end of EU free movement laws does mean that the UK can choose to change the law applying to EU citizens at any time, though. The position papers we are seeing from the government express current views, but those views might change, as we saw with the retracted Priti Patel announcement a few weeks ago. The Withdrawal Agreement would offer a lot of certainty if it were actually agreed as it would be extraordinary for the UK then to break it. But all bets are off in the event of no deal; as we have seen repeatedly since Johnson became Prime Minister, what today’s government says today is not necessarily what tomorrow’s government does tomorrow.

What will be the rights of EU citizens entering after 31 October 2019?

Although EU citizens entering after Brexit on 31 October 2019 will in the short term be able to live, work and study in the UK, they will lose that right in 2021. This means new entrants will need to, by 2021, apply for a new immigration status, leave the UK or become illegally resident (see further below). The same will apply to the family members of newly entered EU citizens.

In contrast, existing residents living in the UK before 31 October 2019 will be entitled, in theory, to remain permanently in the UK as will their family members. I say ‘in theory’ because this entitlement is subject to their making the necessary application before 31 December 2020 and being able to prove their residence before 31 October 2019.

New entrants can apply, if they want to, for a new temporary immigration status called European Temporary Leave to Remain, or ‘Euro TLR’. This will offer a grant of status of three years, which may take the EU citizen’s period of resident beyond 2021 depending on the date of application. But at the end of that period, the EU citizen will be faced with the same choices of applying for status under the normal UK immigration rules, leaving the UK or becoming illegally resident.

What happens in 2021?

For EU citizens, the situation will change in 2021, when the UK is finally ready to introduce its new post-Brexit immigration system. We do not know the precise date that the new system will come into affect, but Priti Patel says in her statement that it will be ‘the start of 2021’. Whether that means literally 1 January 2021 or some time early in 2021 and whether the new system will actually be ready by then is not clear. The gov.uk pages say ‘January 2021’.

The end of EU free movement is going to be such a big deal if EU citizens are exposed to a version of existing immigration rules that it would be no surprise if that date were pushed back.

The government line is that in the event of no deal, the deadline for EU citizens already resident in the UK to apply under the EU Settlement Scheme will be 31 December 2020. If the new system is not ready by 1 January 2021, it looks like that date would need to be extended.

We do not know now what the new system will look like in 2021. It seems unlikely that the rules in 2021 will be substantially different to the rules in 2019, though, particularly on family members.

The White Paper (a White Paper is a government’s written proposal for changes to law and policy) published in 2018 under the May government suggested it will look a lot like the current system but with tweaks to remove numerical caps and make it slightly more user friendly for applicants and sponsors. No changes at all to the UK’s incredibly harsh family immigration rules were proposed in that White Paper. May’s government subsequently signalled a desire to move away from the nomenclature of the existing ‘points based system.’

However, the Migration Advisory Committee was commissioned yesterday to consider the introduction of an Australian-style point based system, so it may be that the 2018 White Paper is now worthless. A more fundamental overhaul of the current system might be introduced once the MAC reports. Or the MAC report may — no doubt to the annoyance of the MAC members — prove to be a political stunt which is buried when MAC come back to point out the shortcomings in an Australian-style system. Or it may just lead to the re-introduction of a genuine points-based visa category akin to the old Tier 1 (General) visa scrapped in 2011. Who knows, at this point?

How does European Temporary Leave to Remain work?

The Euro TLR scheme is perhaps the world’s first voluntary immigration scheme, where an application is not actually needed in order to live, work or study. Applications will be free. Who says the UK can no longer innovate?

As we saw above, because the Immigration (European Economic Area) Regulations 2016 are being preserved in UK law, EU citizens entering after Brexit will have the right to live, work and study in the UK until some time in 2021. Newly arrived EU citizens do not need to apply for this new Euro TLR status in the short term. In fact, on the face of it, for a lot of people it looks like it would actually be a bad idea to apply for it until shortly before the new immigration system comes into force.

The two advantages applying for Euro TLR to the EU citizen seem to be

1. That it grants a guaranteed period of three years of lawful residence and
2. That time spent on Euro TLR can count towards settlement time IF the holder qualifies for settlement under the new rules in force in 2021.

The first of the advantages may mean it is better to delay making an application for Euro TLR. If you apply for that on 1 November 2019, it would expire on 1 November 2022 and you might need to leave the UK at that point. If you enter on 1 November 2019 but apply on 1 December 2020, just before the new system is (supposedly) introduced, your residence is guaranteed until 1 December 2023 instead.

The second of these advantages is predicated on the person concerned qualifying under the new immigration system in force from 2021. As we do not know what the rules will be at that time, this hardly seems like much of an advantage at the moment. A spouse will presumably still have to qualify for the £18,600 minimum income rule and a worker will need to be working for an employer with a sponsor licence.

The policy paper states that an EU citizen who arrives on or after 1 November 2019 and does not apply for Euro TRL will become illegally resident and subject to enforcement action after 1 January 2021:

EU citizens and their family members who move to the UK after 31 October will need to have applied for a UK immigration status (whether Euro TLR or under the new, points-based immigration system) by 31 December 2020. Otherwise, they will be here unlawfully and will be liable to enforcement action, detention and removal as an immigration offender.

The policy paper does not spell this out, but clearly the same applies to EU citizens resident before 31 October 2019 who have not obtained pre settled or settled status under the EU Settlement Scheme. This is because enforcers will not be able to tell the difference between a newly arrived EU citizen without status and a long-resident EU citizen without status.

Frankly, no-one will be able to tell the difference between them anyway, at least without checking the Home Office database by phone or online, as none of them are being issued with paperwork. All you get if you do apply is a “secure digital status”, i.e. an entry on a government database. If you are an EU citizen after 2021, whether employers, landlords and so on can be bothered to look you up may determine whether they offer the job or tenancy to you or to a British citizen who has a passport as ready proof.

Family members

Close and extended family members of EU citizens will be able to enter, live, work and study in the UK after 31 October 2019 just the same as EU citizens. The parts of the Immigration (European Economic Area) Regulations 2016 dealing with family members are also being preserved in UK law. However, if they want to remain in the UK long term, they will eventually have to apply under the normal UK family immigration rules, judged to be the most restrictive in the developed world.

Family members can before 2021 make an optional application for Euro TLR if they want to. As for EU citizens, this is voluntary but offers a guaranteed period of leave beyond the start of 2021, when otherwise they would either have to leave, apply under the UK’s normal family rules or become illegally resident. It is a fair bet that a significant number will end up illegally resident, whether knowingly or unknowingly.

The exception to this is Surinder Singh family members of British citizens. British citizens who move abroad after 31 October 2019 will not be able to return later under the Surinder Singh route if there is no deal. If there is a deal, the current Appendix EU rules will apply, which give the British citizen until the expiry of the Withdrawal Agreement to move to the EU.

In the event of no deal, those who are resident abroad before 31 October 2019 will be eligible to return with close family members as long as they do so by 2022. The policy says:

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.

Given that Surinder Singh currently applies to extended family members and only close family members are mentioned here, it looks like extended family members will not be able to enter the UK under Surinder Singh after 31 October 2019.

How will treatment of resident and newly arrived EU citizens differ?

There is a major question mark over how the Home Office is going to distinguish after 31 October 2019 between EU citizens who are already resident and those who are newly arrived. It seems likely that some EU citizens are going to end up with the wrong status, either because they do not understand which application to make or because they are unable to prove their entitlement under the EU Settlement Scheme. In the short term this will not matter, so EU citizens may not notice the problem. When grants of Euro TLR start expiring from 2022 onwards and EU citizens holding that status find they do not qualify under the new rules, that is going to cause huge disruption.

Before 31 October 2019, any EU citizen applying under the EU Settlement Scheme is guaranteed at least pre-settled status, unless they are excluded by reason of criminality. No real checks on residence therefore have to be carried out.

After 31 October 2019, immigration officials will need to distinguish between EU citizens who were already resident and those who are newly arrived. Those who were already physically present in the UK before 31 October will be entitled to at least pre settled status, which brings with it a route to permanent settlement and the right to be accompanied permanently by family members. Those who are newly arrived will not be entitled to these rights but should instead be granted Euro LTR.

But how will officials tell the difference? EU citizens do not receive a stamp in their passport when they arrive in or depart from the United Kingdom. How will an EU citizen who arrived literally on 31 October who is in theory entitled to pre settled status prove that to the Home Office? Maybe the Home Office has a cunning plan, but I do not know what it might be.

As intimated above, there is also going to be no way for immigration officials, employers, landlords, banks and so on to distinguish between an EU citizen resident before 31 October 2019 who has not applied under the EU Settlement Scheme and one who arrived after 31 October 2019 and has not applied under the new immigration system.

It is inevitable that the end of free movement, when it comes in 2021, will leave in its wake a significant population of EU citizens who are illegally resident. Some will have been resident for years, some will be relatively newly arrived. All will be subject to the hostile environment.

This blog post was originally published on 5 September 2019 and was updated a few days later. Thanks to Chris Desira and David Neale for their very useful suggested additions.