Brexit – Deal or No Deal. The immigration implications

Womble Bond Dickinson
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As the prospect of the United Kingdom leaving the European Union creeps ever closer, one wonders whether the last two years could have been better dealt with by Howie Mandel in the US or Noel Edmonds in the United Kingdom.

With a little over three weeks to go before the expiry of the Article 50 process, where do we stand? How will Brexit affect US citizens including those with dual US/EU nationalities and US companies with UK entities?

On 12th March 2019, the House of Commons (Lower House in the UK) will have a second meaningful vote. The first vote was held on 15 January 2019. After five days of debate, which began on 9 January 2019, the House of Commons voted against the Government's withdrawal agreement with the European Union, with MPs voting 432 to 202 against.

If the Commons votes a second time against the withdrawal agreement, on 13th March 2019 it will then have the opportunity to vote to leave the European Union on 29 March 2019 without a withdrawal agreement in place (a "no deal" Brexit). If this is voted down, the Commons will then vote on 14th March 2019 on a motion extending the Article 50 process for a short limited period.

Deal

In the event that the withdrawal agreement is accepted, a transitional period will operate until 31 December 2020 (or a later date as agreed). In effect, the current free movement regime will continue for EU/EEA and Swiss citizens and their family members. A new immigration regime will start on or after 1 January 2021.

EU/EEA and Swiss citizens and their family members who are already resident in the UK by 30 June 2021 will be able to make an application under the EU Settlement scheme. Those who have accumulated 5 years of continuous residence will be granted the right to stay indefinitely. Those with less than five years will be granted a residence permit for 5 years to enable them to apply for settled status, once they have a total of 5 years residence.

No Deal

If the UK leaves the European Union without a deal, free movement will end on 29 March 2019. However, the EU Settlement scheme will continue for those already resident in the UK by 11pm on 29 March 2019. They will have until 31 December 2020 to apply under the Settlement scheme. For new arrivals after 29 March 2019 and before 31 December 2020, the following will apply

  • EU/EEA and Swiss citizens will continue to be able to enter the UK with their passport or ID card. They will be issued with electronic permission to enter the UK for three months with permission to work or study;
  • Those wishing to stay longer will need to apply for a new status called European Temporary Leave to Remain ("ETLTR"). This will be valid for 36 months;
  • After 36 months, they will need to apply for status under the new immigration system which should come into effect from1 January 2021;
  • If they cannot qualify for leave to remain under this new system, they will need to leave the UK.

Scenarios

I am a US Citizen and also hold an Irish Passport – how does Brexit affect me?

Irish Citizens are considered "settled" on arrival in the UK and do not have to make any applications to remain in the UK.

I hold a US and Italian passport and was thinking of working in the UK in the fall of 2019. What should I do?

If there is a "no deal" scenario, you will need to be physically present in the UK for at least one day prior to exit day. If you have evidence of previous trips to the UK, this will count. You will be able to apply under the Settlement scheme and will be granted a 5 year residence permit.

We are a US company and we are in the process of opening up a UK entity, but this will not happen until after 29 March 2019. We have a large number of potential transfers who hold EU passports. What should we do?

In the event of the withdrawal agreement being passed, you will have until 30 June 2021 to transfer your staff and they will be able to apply under the Settlement scheme. In the event of "no-deal", you will need to assess which of your staff could potentially qualify for pre-settled status (i.e. they have evidence of previous UK residence/trips). Those who do not qualify could enter the UK prior to exit day and make an application under the Settlement scheme or arrive after exit day and make an application for ETLTR. However, for those with ETLTR there is no guarantee that at the end of three years, your staff would qualify under the new immigration system in 2021. Therefore, it may be worth considering a brief trip to the UK prior to exit day.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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