Brexit: Immigration update for EU nationals

28 Oct 2020

plane parked at airport

Brexit has raised significant concerns with EU nationals regarding their position in the UK and what will happen when the UK finally exits the EU at the end of the Brexit transition period on 31 December 2020.

Free movement will continue to apply until the end of the transition period at 11pm on 31 December. Thereafter, EU nationals (including the EEA countries and Switzerland) will become subject to UK immigration controls and will need a visa to live in the UK, unless they are eligible under the EU Settlement Scheme (EUSS).


EU Settlement Scheme

In order to safeguard the rights of EU citizens after Brexit, the UK government introduced the EUSS. This became fully operational on 30 March 2019. Under this scheme, EU (and EEA and Swiss) citizens who have continuously resided in the UK for at least five years are eligible for settled status (also known as indefinite leave to remain/settlement). Those with less than five years’ residence are eligible for pre-settled status (also known as limited leave to remain), which is granted for a period of five years. This will allow them to complete five years’ residence and to become eligible for settled status.

To qualify for settled status under the EUSS, the applicant’s absences must be no more than 180 days in any 12-month period during the five years. If absences exceed this figure, in exceptional cases it may be possible for the UK immigration authorities to exercise discretion and allow the application. If the applicant cannot qualify for settlement, pre-settled status cannot be extended and they will need to apply for a new visa to stay in the UK.

To qualify for pre-settled status under the EUSS, the applicant must be physically present in the UK before the end of the transition period. Hence, it is important for applicants to enter the UK before then if they wish to register. Applicants do not need to be in the UK for a minimum period in order to register, but a period of at least 24-48 hours is recommended. Applicants will need their EU passport and proof of presence in the UK, eg something bearing a UK address (even a hotel invoice with the hotel’s address could suffice), or a plane ticket. The EU national can then leave the UK. Pre-settled status is lost if the holder is absent from the UK for two years or more.

EU nationals coming to the UK from 1 January 2021

EU nationals entering the UK on or after 1 January 2021 who are not eligible under the EUSS must have a visa in order to live in the UK. EU nationals can still enter the UK as visitors, visa-free for up to six months, but if they wish to live in the UK for longer periods, or to work or study here, visas will be required. EU nationals will come under the current immigration system used for non-EU nationals. This is undergoing some changes in January, in preparation for Brexit.

The new immigration system from 1 January 2021

There are a number of potential visa routes potentially available:

  1. Tier 2 work visas for EU nationals with a UK employer as sponsor (which could include their own business as the sponsor).
  2. Sole representative, where the EU national is employed by an overseas business to set up operations in the UK for the first time (not suitable for majority shareholders of the overseas business).
  3. Innovator, where the EU national has an innovative new company (which requires an approved body to endorse the business).
  4. Tier 1 Investor for high net worth clients with £2 million to invest in the UK.
  5. Student and post study work visas for EU nationals studying (usually at degree level) and those graduating in the UK.
  6. Appendix FM partner/parent visa for EU nationals with a British settled spouse, partner or child.
  7. Global Talent visas for leaders or potential leaders in academia, research, digital technology and arts and culture.

There may also be a new visa for the highly skilled, but this will not be introduced until later next year.

UK visas usually cost several thousand pounds and include an immigration health surcharge. Visa processing can also take several weeks, particularly given current Coronavirus-related delays.

Owing to Coronavirus, many priority visa processing services have been suspended whilst the UK immigration authorities clear a backlog of cases. Applicants should allow plenty of time to secure their visa and be aware that travel to the UK in the interim is usually not possible. Depending on where individuals are travelling from, they may also be required to self-isolate for 14 days following their arrival in the UK.

Rose Carey, Partner, Charles Russell Speechlys, E: [email protected]

Elena Vasilyeva, Senior Associate, Charles Russell Speechlys, E: [email protected]

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