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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

The UK left the European Union on 31 January 2020.

The UK left the European Union on 31 January 2020. EU free movement law continued to apply until 31 December 2020, when the transition period under the Withdrawal Agreement came to an end. There was then a six month ‘grace period’ until 30 June 2021. During this ‘grace period’ EEA citizens already living in the UK could continue to rely on their EU free movement rights. From 1 July 2021 all EEA citizen, and their family members, require a visa to remain lawfully in the UK. This may be in the form of:

  • pre-settled or settled status - for those who began living in the UK before 31 December 2021;
  • a frontier worker permit - for those who began working in the UK before 31 December 2021 but live elsewhere in the EEA
  • a visit visa - for short visits by those with no UK residence prior to 31 December 2021 (this is granted at the border upon entry);
  • a skilled worker visa - for those wishing to work in the UK, who have no UK residence prior to 31 December 2021; or
  • a family permit – for those who are joining a family member who is an EEA citizen and who is already living in the UK.

Here, we answer some common questions about how Brexit has affected EU migration.

I started living in the UK before 31 December 2021, but I have not applied for settled status or pre-settled status yet. What do I do?

You should apply for status under the EU Settlement Scheme as soon as possible. Late applications will be accepted where there are “reasonable grounds” for failing to meet the 30 June 2021 deadline. This may be because:

  • a parent, guardian or Local Authority has failed to apply on behalf of a child;
  • you have or had a serious medical condition, which meant they were unable to apply in time;
  • you are a victim of modern slavery or is in an abusive relationship;
  • you are isolated, vulnerable or did not have the digital skills to access the application process;
  • you were unable to apply by the relevant deadline for compelling practical or compassionate reasons – including in light of the coronavirus pandemic.

An EEA citizen who has missed the 30 June 2021 deadline will be given 28 days from the date their lack of status is discovered (for instance by their employer or by Immigration Enforcement) to make an application.

I have pre-settled status, do I need to do anything else to remain in the UK?

Yes. You must apply for settled status before your re-settled status expires. If you fail to apply for settled status, you will lose your right to live and work in the UK.

You must also keep your contact details and passport details up to date with the Home Office. This can be done here - https://www.gov.uk/update-uk-visas-immigration-account-details

I currently employ EEA nationals, what do I need to do?

As noted above, as of 1 July 2021, EEA nationals and their family members require a visa to remain lawfully in the UK. However, as an employer, you do not need to re-check the status of existing employees (i.e. those hired on or before 30 June 2021). This is confirmed in the Home Office’s Right to Work Guidance dated 1 July 2021 (at page 37):

 “From 1 July 2021, EEA citizens and their family members require immigration status in the UK. They can no longer rely on an EEA passport or national identity card, which only confirms their nationality, to prove their right to work. They are required to provide evidence of lawful immigration status in the UK, in the same way as other foreign nationals. There is no requirement for a retrospective check to be undertaken on EEA citizens who entered into employment up to and including 30 June 2021. You will maintain a continuous statutory excuse against liability for a civil penalty if the initial checks were undertaken in line with the guidance that applied at the time you made the check.” 

This means that, providing you checked your employee’s EEA passport when you first hired them, you do not need to now check if they have applied for pre-settled status or settled status.

If you identify an EEA citizen in your workforce who has not applied for pre-settled or settled status by 30 June 2021, you should advise the employee to make an application for pre-settled or settled status within 28 days. If they provide you with confirmation that they have made an application within 28 days, you can continue to employ them. If they do not make an application, you must cease their employment.

It is a criminal offence to employ someone who does not have the right to work (which includes an EEA citizen who has not applied for status by 30 June 2021). However the Right to Work Guidance dated 1 July 2021 (at page 44) highlights that:

 “…the criminal offence of employing an illegal worker is generally reserved for the most serious cases of non-compliance with the Right to Work Scheme. It is not intended for employers who have employed EEA citizens in good faith having completed a right to work check in the prescribed manner and are acting in accordance with this guidance to support their employees to make an application to the EUSS.” 

This is a transitional measure which will only last until 31 December 2021. After this date you must dismiss any employee who does not have the right to work.

For new employees, hired from 1 July 2021, you must to check that they have the right to work. For EEA citizens and their family members, this will mean ensuring that they have pre-settled status, settled status, or some other immigration status which confers the right to work (such as a spouse visa). You must not accept residence permits issued under EU free movement law as evidence of a potential employee’s status, as these are no longer valid.

I am an EEA citizen living in the UK. I want my family to join me, how do I do this?

Your family members may be able to apply for an EU Settlement Scheme family permit. Your relationship with them must have existed before 31 December 2020 (the end of the Brexit transition period) and you must be someone who is eligible for either pre-settled or settled status (i.e. you started living in the UK before 31 December 2020). Children who were born or adopted after 31 December 2020 may also be eligible.

If your relationship with your family member did not exist before 31 December 2020 (for instance if your marriage took place after that date), then the EU Settlement Scheme rules will not apply. However your partner may be able to apply for a spouse/partner visa.

I am an EEA citizen who has never lived in the UK before, how do I get a visa to live in the UK long term?

You will not be able to benefit from the EU Settlement Scheme if you have not previously lived in the UK. You will not be able to obtain a frontier worker permit if you have not previously worked in the UK. You will be treated the same as any other foreign national, and will require a visa to come to the UK.

The type of visa you can obtain will depend on your circumstances. If you have a British spouse, you may be able to apply for a spouse visa. If you have been offered employment by a UK employer with a sponsor licence, you may be able to obtain a skilled worker visa. If you wish to start your own business, you may be able to obtain a start-up or innovator visa. If you plan to study in the UK, you may be able to obtain a student visa.

I am a British citizen living in the EEA, and would like to return to the UK with my partner. What type of visa should they apply for?

You may be able to apply for an EU Settlement Scheme family permit for your partner. Your relationship with your partner must have existed before 31 January 2020 (when the UK left the EU), and you must return to the UK by 29 March 2022. This is because, following a case called Surinder Singh, EU law has allowed a British citizen to return to the UK with their family members after residing in another EU Member State. The family member must be permitted entry to the UK under the same terms as family members of other EEA nationals.

Although the UK has left the EU, it has been recognised that British citizens who exercised their free movement rights, before Brexit took effect, should be given an opportunity to return to the UK without losing their right under EU law to bring their family with them. The UK Government have allowed British citizens until 29 March 2022 to return to the UK with their family.

Alternatively, your partner may be able to obtain a spouse/partner visa, in the same way as all other foreign nationals can. This may be necessary in some circumstances, for instance if you return to the UK after 29 March 20222 or if your marriage took place after 31 January 2020. It may also be preferable in some circumstances, for instance where your case under Surinder Singh is very weak and there is a high risk that an application on that basis would be refused.

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