Brexit has substantial implications for immigration between the UK and the EEA/Switzerland (excluding Ireland). Businesses and individuals should ensure they have a plan in place for how to deal with the new immigration requirements that apply for EEA/Swiss (EEA) national workers and their family members from 11 pm on 31 December 2020, and for all other non-EEA national workers from 1 December 2020. Planning should also cover British nationals who are residing in the EEA, or who need to travel to the EEA from 11 pm on 31 December 2020.
Following the end of the Brexit ‘implementation period’ at 11 pm on 31 December 2020, EEA nationals and their family members no longer benefit from freedom of movement to the UK, and nor do British nationals and their family members travelling to the EEA.
Detailed Immigration Rules for the work categories of the UK’s new system came into effect for non-EEA national workers from 1 December 2020. These also apply to EEA national workers and their family members after 31 December 2020. New guidance for sponsors has been made available in relation to the new immigration categories.
Key points to note for EEA/Swiss nationals travelling to the UK
- The arrangements between the UK and Ireland have not substantially changed following the end of the implementation period, due to the continuing existence of the Common Travel Area. These rights have been further formalised in the UK under the Immigration and Social Security Coordination (EU Withdrawal) Act 2020, allowing Irish citizens to enter and remain in the UK without restriction unless limited circumstances (such as a deportation order) apply.
- EEA/Swiss nationals are eligible to apply under the EU Settlement Scheme (EUSS) if they arrived in the UK by the end of the implementation period – this may not be a straight-forward matter for some individuals, eg those who attempted but failed to enter the UK, or those who have previously resided in the UK but have spent substantial time abroad, especially during 2020 due to the COVID-19 pandemic as they may have broken the continuity of their residence in the UK as a result
- Irish nationals who started residing in the UK before the end of the implementation period can apply under the EU Settlement Scheme but are not required to do so
- The main deadline for applying in the UK under the EU Settlement Scheme is 30 June 2021
- Close family members of EEA/Swiss nationals with status under the EUSS, or who are exempt from immigration control, or who are frontier workers are able to apply under the EU Settlement Scheme after the end of the implementation period, with no deadline, provided they were living abroad at the end of the implementation period, the relationship existed before the end of the implementation period and the relationship still exists at the time they apply
- Children born to an EEA/Swiss national either in the UK or abroad, or who are adopted after the end of the implementation period will be eligible to apply under the EU Settlement Scheme with no deadline
- The spouse or civil partner of a Swiss national will be eligible to apply under the EUSS with no deadline if the marriage or civil partnership is contracted between 1 January 2021 and 31 December 2025, and continues to exist at the time of application
- After the end of the implementation period, EUSS participants with limited leave must sponsor new family members under the Immigration Rules for family members (aside from the provisions for the spouse or civil partner of a Swiss national outlined immediately above)
- EUSS applicants may apply after the relevant deadlines, however they will have to show reasonable grounds why they could not meet the deadline and receive a written confirmation from the Home Office allowing them to apply by a particular date
- A new immigration route has been put in place from 1 December 2020 to allow eligible service providers from Switzerland to come to the UK for work for up to 90 days per calendar year
- A frontier worker permit scheme opened on 10 December 2020 to enable individuals who work or are self-employed in the UK but resident abroad to continue this pattern of activity as a person who is exempt from immigration control
- Following the conclusion of the UK-EU Trade and Co-Operation Agreement, from the end of the implementation period EU national contractual service suppliers and independent professionals in specific sectors may apply under the T5 International Worker route to come to the UK for up to 12 months to fulfil a service supply contract with a UK final consumer
- Following the conclusion of the Temporary Agreement between the UK and Switzerland on Services Mobility, from the end of the implementation period Swiss national and Swiss permanent resident contractual service suppliers and independent professionals in specific sectors may apply under the T5 International Worker route to come to the UK for up to 12 months in any 24 months to fulfil a service supply contract with a UK final consumer
- All other EEA/Swiss nationals and their family members arriving in the UK for the first time on or after the end of the implementation period will need to meet the requirements of the UK’s post-Brexit immigration system, which have been slightly amended to allow visiting market researchers and analysts to carry out market research or analysis in the UK for an overseas enterprise; to allow visiting scientists and researchers to do independent research in the UK for their employment overseas; and for visiting translators and/or interpreters to carry out translation and/or interpretation services for their overseas employer
- Right to work checks for EEA/Swiss nationals and their family members will not change until after 30 June 2021. The Government is expected to release more detailed guidance for employers on right to work checks in the first half of 2021.
Key points to note for British nationals returning to the UK after living in the EEA or Switzerland
- Only British nationals who exercised rights of free movement in the EEA or Switzerland before the UK’s exit from the EU on 31 January 2020 will be able to use EU case law (known as the Surinder Singh route) to bring their non-British family members with them when they return to the UK
- In order for a family member to be eligible under the EUSS, the British national and the family member must return to the UK by 29 March 2022 and make the EUSS application for the family member by this date (unless reasonable grounds for meeting this deadline are accepted by the Home Office)
Key points to note for Turkish workers and businesspeople travelling to or living in the UK
- The UK is no longer be bound to observe the European Community-Turkey Association Agreement and its protocols (Turkish ECAA) after the implementation period
- From the end of the implementation period, those who have not previously relied on the Turkish ECAA as the basis of their residence in the UK will need to meet the requirements of the post-Brexit immigration system
- Turkish workers, Turkish businesspersons and their family members who made applications relying on the Turkish ECAA before the end of the implementation period will still have these processed
- Those who started residing in the UK in accordance with the Turkish ECAA before the end of the implementation period will be able to extend their stay on the same basis as under the Turkish ECAA and will continue to be able to apply for indefinite leave to remain, normally after five years’ qualifying residence
- After the end of the implementation period, Turkish workers and businesspersons must sponsor their partner and/or children under the Immigration Rules for family members
Key points to note for British nationals travelling to the EEA and Switzerland
- British nationals intend to continue to reside in the EEA (other than Ireland) or Switzerland after the end of the implementation period will need to comply with the requirements of the national government under the relevant country’s EU Settlement Scheme equivalent
- Immigration to the EEA/Switzerland for British nationals after the implementation period is subject to the domestic law arrangements of those countries
- British nationals intending to visit the EEA (other than Ireland) or Switzerland after the end of the implementation period will need to have at least six months remaining on their current passport (excluding any period the passport is valid for in excess of ten years) and must ensure they do not stay in the Schengen area for more than 90 days in any 180-day rolling period. The Schengen area currently includes Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland
- British nationals intending to visit the EEA (other than Ireland) or Switzerland after the end of the implementation period will need to meet the COVID-19 travel requirements for the relevant country as they apply to non-EEA nationals in general, as well as any specific requirements that apply to British nationals specifically
- Once the European Travel Information and Authorisation System (ETIAS) is implemented, which is currently due to be by the end of 2022, British nationals will need to obtain authorisation under the system prior to travelling to the Schengen area. This will include paying a fee of €7 for an authorisation period of three years or the expiry date of their passport, whichever comes earlier.
What actions can be taken from a UK immigration perspective?
- Advice should be sought on whether the EU Settlement Scheme or frontier worker permit provisions may be applicable prior to making an application under other provisions of the Immigration Rules. This has become more complex due to the ongoing pandemic and specific evolving policies relating to how the pandemic has affected travel.
- EEA/Swiss nationals and their family members who are resident in the UK should ensure they apply under the EU Settlement Scheme before the relevant deadlines.
- Employers should review their workforce planning and recruitment budgets to take into account the need for EEA/Swiss nationals and their family members to apply under the post-Brexit immigration system from 1 January 2021, and for the likelihood that some individuals may wish to move from an existing immigration category into one of the new ones. We anticipate for example that some Tier 2 Intra Company-Transferees may wish to switch into the new Skilled Worker Route. Consideration should be given to applying for a sponsor licence or increasing the allocation of Certificates of Sponsorship under an existing licence to cater for in-country switchers, including timing and cost
- Employers should consider participating in stakeholder engagement opportunities offered by the Government, the Migration Advisory Committee and other relevant bodies as part of the further development of the new immigration system
- British citizens and their non-British family members should plan to be in a position to return to the UK and make an application for the relevant family members under the EUSS by 29 March 2022
What actions can be taken from an EEA/Swiss immigration perspective?
- British nationals and their family members who are living in the EEA or Switzerland before the end of the implementation period should ensure they understand the visa/residence permit requirements to enable them to remain after 31 December 2020, including timing and cost
- British nationals intending to visit the EEA or Switzerland after the end of the implementation period should ensure they understand the requirements, including any restrictions on passport validity, activities and length of stay
- British nationals and their family members intending to enter the EEA or Switzerland for non-visit purposes after the end of the implementation period should ensure they understand the visa/residence permit requirements, including timing and cost, before travelling.
How can we help?
We are able to offer advice to individuals on their immigration options in the UK and across the EEA and Switzerland both before and after the end of the transition period. We also offer a range of Immigration services designed to ensure that businesses are fully informed and prepared for what lies ahead. As part of our broader Immigration solutions for HR, we can help businesses and their individual employees to understand the EU Settlement Scheme and the implications of the end of freedom of movement so that EEA/Swiss nationals can continue to be employed lawfully in the UK. We can also suggest strategies to maintain British employees’ ability to work on the continent.
We also have a useful international Brexit guide which has been produced by our Ius Laboris Brexit taskforce. In the guide we provide: guidance on the immigration implications of the UK’s trade deals with the EU and Switzerland (comprehensive free trade agreements including immigration have not yet been concluded with Iceland, Liechtenstein and Norway); business travel; employment and residence; frontier workers; permanent residence and securing residence & work status. The international Brexit hub also includes insights and updates on the latest Brexit developments from around the globe.
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The countdown for the new UK immigration system 2020 and Brexit – are you ready?21 December 2020
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New Immigration Act becomes law12 November 2020
The Act provides the legislative basis for ending EU free movement arrangements in the UK after the end of the transition period, and for recognising the immigration status of Irish citizens in the UK.
Six pitfalls to avoid with the EU Settlement Scheme27 October 2020
Despite the EU Settlement Scheme (EUSS) being publicised as being simple and straightforward, there are many potential pitfalls for the unwary, particularly when the circumstances of the COVID-19 pandemic are factored in. To avoid them, it will be important for individuals to be aware of the scheme and to get to grips with it before the end of this year. This is because in some cases, assessments and actions will need to be completed by then, despite main deadline for the scheme not being until 30 June 2021.