EEA nationals and Brexit: Your frequently asked questions

Since Brexit happened on 31 January 2020, we have been receiving a lot of questions on what this means for EEA and Swiss nationals (collectively, EEA nationals). We have gathered these together for ease of reference to guide EEA nationals and their employers on what action they should be taking.

What has happened?

At 11pm on 31 January 2020, the UK officially left the European Union after 47 years. On this day, everything changed in theory but nothing changed in practice and this is particularly the case for the immigration position of EEA nationals.

The UK and EU are now in a Transition Period until 11pm on 31 December 2020. During this time, the UK will continue to follow EU rules and regulations including those on freedom of movement.

From 1 January 2021, EEA nationals (apart from Irish nationals) will be subject to the same immigration controls as non-EEA nationals.

What is the status of EEA nationals during the Transition Period?

Between now and 11pm on 31 December 2020, EEA nationals will continue to enjoy the right to remain in or enter the UK to live, work and study without the need for any additional documentation beyond their passport or national ID card.

Employers can continue to hire EEA nationals as normal and the only right to work check document that employers need to retain will continue to be a signed, dated copy of the employee’s EEA passport or national ID card.

What action should EEA nationals take during the Transition Period?

The Home Office has created the EU Settlement Scheme to allow EEA nationals to apply for a UK immigration status which secures their right to reside beyond 1 January 2021 with full work and study rights.

Any EEA nationals present in the UK by 11pm on 31 December 2020 are eligible to apply and the deadline to make an application is 30 June 2021. We have prepared detailed guidance on the EU Settlement Scheme here.

If an EEA national is planning to move to the UK, we would encourage them to enter the UK before 31 December 2020 and file an application for Pre-Settled Status. This will grant them a residence permit valid for 5 years. Applicants need only provide a used travel ticket with their name and a date as evidence of their residence.

What happens after the Transition Period from 1 January 2021?

From 1 January 2021, all non-British/Irish nationals will require immigration permission to enter or be in the UK if they intend to reside, work or study.

For EEA nationals who are already living in the UK, this immigration permission will be granted via the EU Settlement Scheme.

For EEA and non-EEA nationals arriving in the UK after 1 January 2021, there will be a new immigration system.

The new system is likely to be a continuation of the current system which is based around sponsorship e.g. a Tier 2 work permit sponsored by an organisation which holds a Sponsor Licence.

The details of this new immigration system are likely to be announced by the UK Government in March 2020 and the Migration Advisory Committee have already provided their thoughts on what this would look like.

In short, EEA nationals will continue to be able to come to the UK to live, study or work but they will need to find a sponsor and apply for a visa pre-arrival. There may be more self-sponsored routes available via, for example, an Australian-Style Points Based System but the details of this have to be announced.

EEA nationals coming to the UK for short visits will not require a visa.

What should employers be doing?

Employers should be encouraging their current EEA national workforce to make their applications to the EU Settlement Scheme or provide active support to them. Macfarlanes has been completing a lot of these applications on behalf of employees, holding town hall meetings and providing written communications to place on company intranets.

We would advise that employers ensure that they are aware of their employee population and their nationalities so that support and reassurance can be provided.

The good news is that you do not have to re-do your right to work checks for your current EEA employee population – if you have a valid right to work check on file, this will continue to provide a statutory defence against a civil penalty.

From 1 January 2021, it is likely that a Sponsor Licence will be a vital asset given the increased need to sponsor EEA nationals and non-EEA nationals coming to the UK for the first time. You should ensure that you are meeting your compliance obligations and are audit ready.