The Brexit immigration survival guide

EU nationals and their family members have an automatic right to reside in the UK until free movement ends, as long as they satisfy the Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016).  

The European Union Settlement Scheme (EUSS) opened on March 30 2019, allowing all EU nationals and their family members who enter the UK before January 1 2021 to apply for to protect their right to reside, work and rent property in the UK. Applications to the EUSS are open until June 30 2021.  

The residence of any EU national and/or family members who do not qualify under the EUSS and do not hold any other form of immigration permission under UK domestic law may be at risk of becoming unlawful from January 1 2021. To avoid this risk, EU families and UK employers should consider taking the following steps if they have not already done so: 

Free movement will end on December 31 2020, and this is also the deadline for EU nationals to enter the UK to qualify under the EUSS. While the deadline to apply under the EUSS is June 30 2021, the best practice for those wishing to continue living in the UK is to make an application as soon as possible.  

December 31 2020 is also the deadline to apply for documentation under the EEA Regulations 2016, but generally individuals should not make applications of this type unless they will be immediately eligible for British citizenship following approval. 

Employers should keep an internal record of all EU staff and non-EU family members of EU migrants. Where possible, the HR record should detail whether these staff currently hold any documentation under the EEA Regulations 2016 and/or whether they have applied under the EUSS.  

Employers should ensure that their EU staff have access to the EUSS app so they can complete the identity checks. Employers should assist with making employment records available, as these may be required by staff when making the relevant application.  

As overseas travel of more than six months in any 12-month period can affect eligibility for status under the EUSS, employers should bear this limit in mind when requesting overseas work trips, or secondments for EU staff prior to an application being made.  

Given the complex nature of immigration rules, it may be advisable to obtain legal advice on the best course of action for each individual staff member, particularly for multinational companies or for individuals who possess complex UK immigration histories. Certain people, especially high net worth individuals, might even want to consider dual citizenship.

This advice would be particularly helpful to inform whether an individual may be immediately eligible for British citizenship following an application under the EEA Regulations 2016 or if s/he should instead apply under the EUSS.  

The UK plans to introduce a new immigration system from January 2021. Currently, the total fees for a skilled worker from entry to permanent status in the UK could total approximately £11,000 over a five year period. Considering that applications under the EUSS are free, employers should consider accelerating future plans to employ EU nationals in the UK where possible. 

Finally, it is anticipated that the government will make detailed announcements on the shape of the new UK immigration system in Spring 2020. Employers should be alert to these and all other future government announcements so that they can take any required steps to legally maintain the employment of their current EU staff and, significantly, to ensure business plans are in place to enable the mobilisation and recruitment of EU nationals from January 2021 onwards.  

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