What Does This Mean For EEA Nationals Already Resident in the UK?
If the UK leaves the EU without a deal then the Withdrawal Agreement will not take effect. However, the government has stated that the EU Settlement Scheme, which opened to employees of universities in November 2018 and is currently open for a public testing phase, will continue to be run, granting status to those EU nationals who are resident in the UK by 29 March 2019. The Scheme will remain open until 31 December 2020 in order to give EU nationals resident by 29 March 2019 time to submit applications.
As would be the case under the Withdrawal Agreement, EU nationals who are granted status under the EU Settlement Scheme will still be able to work, study and access benefits as they can under current EU free movement rules.
EEA and Swiss nationals, and the family members of EU nationals, will also be able to apply under the EU Settlement Scheme in a no deal situation if they are resident in the UK by 29 March 2019. However, family members of EU, EEA and Swiss nationals who are granted settled status will only be able to join their family members in the UK under the EU Settlement Scheme until 29 March 2022. After that date they will need to apply under the relevant Immigration Rules.
The government has said that even in the event of a no deal, the same entry requirements that currently apply to EU nationals will continue to apply until the end of 2020. This means that EEA nationals will continue to be able to use the ePassport gates at UK airports and should not be subject to detailed scrutiny about their intentions while in the UK.
Because all EEA nationals will be treated the same at the UK border until the end of 2020, and granted entry in the same way that they are now, there is no need for EEA nationals to present evidence that their residence in the UK commenced before 30 March 2019 when entering the UK on or after that date.
However, under a no deal scenario, only EEA citizens resident in the UK by 29 March 2019 will be able to apply under the EU Settlement Scheme.
On 28 January 2019, the government published new proposals which it intends to take effect in the event of a no-deal Brexit. Under the proposals, all EEA nationals who enter the UK after 29 March 2019 will be permitted to stay for 3 months without any restrictions on their ability to work or study. If EEA nationals who were not resident by 29 March 2019 wish to stay in the UK longer than 3 months, then they will need to apply for a new immigration status: European Temporary Leave to Remain. Those who stay longer than 3 months but do not apply will be committing an offence.
The new status will be valid for 3 years and will allow those EEA nationals to continue living and working or studying here. However, that status will not be extendable and will not lead to indefinite leave to remain in the UK, so EEA nationals granted European Temporary Leave to Remain and wish to stay in the UK for longer than 3 years will need to apply under the Immigration Rules in force at that time.
The government has said that changes will not be made to the documents employers are required to check to demonstrate that their employees have the Right to Work in the UK until the end of 2020. However, employers will need to be mindful that their EEA national employees in the UK will need to apply either under the EU Settlement Scheme or , if they do not qualify under that Scheme, for European Temporary Leave to Remain.
With regards to current EEA national students, even if the UK leaves the EU without a deal, there will be no change to their rights and status until 31 December 2020. Universities should therefore encourage those students to apply under the EU Settlement Scheme and for those students taking up residence in the UK for the first time after 29 March 2019 (eg those starting courses in September 2019) to apply for the European Temporary Leave to Remain.
For those EEA nationals who are not due to commence university employment or studies until after 29 March, it would be worth exploring whether start dates might be brought forward to before 29 March or if they might take up residence before 29 March 2019 in order to bring them within the remit of the EU Settlement Scheme.
Very little detail has been released so far about the new temporary status and how it will work in practice. Questions have also been raised about the extent to which employers may be liable under the civil penalty regime, or even criminally, if they employ an EEA national who they know did not take up residence in the UK until after 29 March 2019 and has failed to apply for temporary leave to remain when they should have done.