UK Immigration Update: New Proposals for EEA and Swiss Nationals in Case of No-Deal Brexit

September 09, 2019

Following the prime minister’s announcement that free movement will come to an end, the UK government has published a policy paper setting out proposals for European Economic Area and Swiss nationals if the United Kingdom leaves the European Union without a deal on October 31, 2019.

The proposals set out in the policy paper published on September 5 are almost identical to many of those set out in the previous policy paper issued under Theresa May on January 29, 2019. If the UK government adopts the proposals, they would need to be accepted by the UK Parliament and be implemented into UK law before they could take effect.

The proposals set out that if a deal is not reached, only European Economic Area (EEA) and Swiss nationals who arrive in the United Kingdom prior to Brexit will be able to apply under the EU Settlement Scheme.

EEA and Swiss nationals arriving in the United Kingdom after Brexit, between October 31, 2019, and December 31, 2020, will be able to enter and leave the UK as they do now, using egates when traveling on a biometric passport. However, they will be required to apply for European Temporary Leave to Remain (Euro TLR), which will be issued for a period of 36 months. During this period, EU citizens will have a digital status that entitles them to work and to rent property for the duration of the 36-month period.

If at the end of the 36-month period an EEA or Swiss national intends to stay in the United Kingdom beyond the initial period granted, he or she would need to apply for immigration status under the new immigration system, which is due to come into force on January 1, 2021. Those who do not qualify under the new system will need to leave the United Kingdom when their Euro TLR expires.

It was previously envisaged that Euro TLR would not lead to indefinite leave to remain (ILR); however, the new policy paper states that where an EEA or Swiss citizen is granted permission to stay under the new immigration system in a route that leads to ILR, their 36 months’ Euro TLR will count toward the qualifying residence period for ILR.

The policy paper also states that the United Kingdom will also be phasing out the use of EEA national identity cards for travel to the UK during 2020. EEA nationals who do not hold current passports are therefore encouraged to apply for a passport as soon as possible.

Irish citizens will not need to apply for Euro TLR and will continue to have rights to live and work in the United Kingdom on the basis of their Irish passports.

Right-to-Work Checks and Impact on Employers

The new proposals state that employers, landlords, and other third parties will not be required to distinguish between EU citizens who moved to the United Kingdom before or after Brexit until the new immigration system is introduced in January 2021.

Until December 31, 2020, EU nationals will be able to evidence their right to work using their EEA passports or national ID cards. Alternatively, if they wish to do so, EU citizens will be able to use their digital status, granted under the EU Settlement Scheme or the Euro TLR scheme, to prove their right to work via the UK Home Office’s digital status-checking service. Non–EU citizen family members will be able to rely on biometric immigration documents to prove their right to work, or via the digital status-checking service should they so choose.

When the new points-based immigration system is introduced in January 2021, employers will need to undertake right-to-work checks for new EEA national employees to ensure that they have valid UK immigration status, and not just passports or national identity cards. These additional checks will only apply to new employees and will not take effect retroactively for existing employees.

How Employers Can Prepare

The prospect of a no-deal Brexit may be unsettling for existing employees. We have set out below some steps that employers can take now to prepare for a no-deal Brexit.

  • Audit the immigration status of their workforces to help plan for change
  • Identify EEA and Swiss nationals working in the United Kingdom
  • Identify UK nationals working elsewhere in the European Union
  • Review long-term recruitment and succession planning and proposed secondments and rotations
  • Decide as a business how to support applications and how much they are able to invest in the process
  • Plan employee communications and provide information to employees on the current application process and proposed changes
  • Communicate key application deadlines and advise employees on what needs to be done and when
  • Encourage employees in the United Kingdom before October 31 to obtain confirmation of their rights by applying under the EU Settlement Scheme
  • Review current right-to-work procedures to ensure they are prepared for the implication of the widening of the current “right to work” regime

Future Immigration System

The proposals set out that the government will introduce a new points-based immigration system from January 1, 2021. The independent Migration Advisory Committee (MAC) has been commissioned to review the Australian system and other international comparators to determine best practices for a post-Brexit UK immigration system. The MAC is an independent, nondepartmental public body sponsored by the Home Office that advises the government on migration issues; the MAC has been given until January 2020 to report its findings to the government.


If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Jennifer Connolly
Yvette Allen