Appendix 1: Draft Immigration (European Economic Area Nationals) (EU Exit) Order 2019
Additional information from the Home Office
Q1: Chapter 1 of this Order would enable a European Economic Area (EEA) national to enter the UK for three months, for work, study or as a tourist. But the Home Office states that, where the conditions set out in the Order are satisfied, leave to enter by order would be granted automatically at the border on arrival, without any visa document or stamp in the individual’s passport.
A1: The intention is to provide initial continuity and effective running of the border in a ‘no deal’ scenario, for the duration of the transition period until the implementation of the new skills-based immigration system from January 2021.
Until the new skills-based immigration system is introduced, EEA and Swiss nationals, including resident nationals and new arrivals, will be able to demonstrate their right to work and access services by showing a passport or national identity card, as now.
Q2: In the Explanatory Note it says that no notice of leave is given to the person – so how will 1) the visitor or 2) the authorities know if they have overstayed?
A2: Individuals wishing to stay for longer than three months would need to apply for European temporary leave to remain. Upstream communications and communications at the border would seek to ensure individuals were aware of this. When making an application for European temporary leave to remain, individuals would self-declare the date on which they arrived in the UK”.
Q3: It has been rumoured that in case of a no-deal Brexit, UK citizens travelling to the EU will need to obtain an entry “visa” at a cost of around 8 Euros – is there no plan to charge for this “leave to enter” or will you wait and see and introduce a cost on a reciprocal basis?
A3: In a ‘no deal’ scenario, leave to enter with a duration of three months would be granted by order, automatically, at the border. There is no intention to apply a fee for this. Further details about the fee for European leave to remain, which individuals would require should they wish to stay for longer than three months in a ‘no deal’ scenario, will be announced in due course.
The EU have announced that UK nationals will not be subject to a visit visa requirement (i.e. for visits not exceeding 90 days in any 180-day period). However, the EU Commission has announced plans to introduce an Electronic Travel Information and Authorisation System (ETIAS). This is similar to systems in place in other countries, such as the US ESTA scheme, and will require third country nationals who do not need a visa to travel to the EU to obtain an ETIAS authorisation prior to travelling to the EU. The EU has indicated that the requirement will also apply to UK nationals as third country nationals once the UK leaves the EU. The EU’s ETIAS is not expected to be operational before 2021.
The UK has announced plans in the white paper ‘The UK’s future skills-based immigration system’ [Cm 9722] to introduce a similar scheme to ETIAS which would require visitors and transit passengers who do not currently normally need a visa to obtain an Electronic Travel Authorisation (ETA) prior to travel to the UK. The scheme would not apply to British or Irish citizens, but we do intend to require EEA and Swiss nationals to obtain an ETA.”
Q4: What happens if the visitor overstays the 3-month period?
Q5: Para 7.10 of the Explanatory Memorandum (EM) states that they will have to apply for further leave to remain – how will the overstayers be identified? How would they make that application? How many applicants are anticipated? Does the Home Office have capacity for to deliver the necessary permits?
A4 and A5: EEA and Swiss nationals who arrive after free movement has ended and are not eligible for the EU Settlement Scheme would need to apply for European temporary leave to remain if they wished to stay for longer than three months. Applications would be made online, once the individual had arrived in the UK and within three months of their arrival.
If EEA citizens then wanted to stay in the UK for more than 36 months, they would need to apply for an immigration status under the new skills-based immigration system, which will come into effect from January 2021. Those who did not qualify would need to leave the UK when their European temporary leave to remain expired.
The European temporary leave to remain scheme will be delivered using infrastructure created for the EU Settlement Scheme. The inflow of EEA citizens is expected to be no greater than would have arrived during the implementation period (from exit to 31 December 2020) in a ‘deal’ scenario and been eligible for the EU Settlement Scheme, therefore the Home Office expects to have sufficient capacity to process applications.
Q6: Will those who overstay without additional documentation be deported? Banned from returning to the UK? This all seems rather unenforceable.
A6: These are transitional arrangements to provide continuity and effective running of the border in the event that the UK leaves the EU without a deal, until the new immigration system is introduced in 2021. If EEA and Swiss nationals are found not to have European temporary leave to remain more than three months after arrival, they will be here unlawfully and may be liable to enforcement action. They will be strongly encouraged to make an application, otherwise they would need to leave the UK.
The enforcement approach will of course need to take into account that the resident population of EEA and Swiss citizens will have until 31 December 2020 to make an application to the EU Settlement Scheme, and will be able to reside lawfully in the UK in the interim. These transitional arrangements are intended to facilitate the granting of a UK immigration status to all EEA citizens and their family members by January 2021 ready for introduction of the future skills-based immigration system. Under the future immigration system, all EEA nationals and their dependants will require permission be here.
Q7: Paragraph 7.12 of the EM says that “the UK does not operate routine immigration controls on journeys from within the Common Travel Area to the UK”. What is to stop the 3-month limit being subverted by EEA travellers going to the Irish Republic first and then freely crossing into the UK via the Common Travel area? Again how is this enforceable?
A7: When entering the UK from Ireland, where the conditions set out in the Order are met, leave to enter by order will be granted automatically on arrival in the UK. This supports, in particular, movement across the land border from Ireland into Northern Ireland. For example, those living in Ireland but working in Northern Ireland will be able to do so with this automatic leave to enter. Those EEA nationals who want to remain and work long-term in the UK will need to apply for European temporary leave to remain.
When entering the UK from the Crown Dependencies, the leave granted by the Islands will be recognised as leave to enter the UK, in line with the existing approach under Schedule 4 to the Immigration Act 1971.
Q8: Article 8 allows that when a person from the EEA is granted indefinite leave to remain, that leave does not lapse unless they have been out of the country for 5 years continuously (with certain exceptions) – again how will they or the authorities know how long the person has been out of the country if there is no stamp in their passport etc.?
Q9: Thinking about the issues raised by the Windrush scheme, how does someone provide acceptable evidence that they have (or have not) been resident in the UK for a certain amount of time?
A8 and A9: The Order simply increases, from two to five years (with certain exceptions), the continuous period of absence permitted before the lapse of indefinite leave granted under the EU Settlement Scheme (and recorded in all cases in the form of a secure digital status). It does not make changes to how absence from the UK is assessed, nor the evidential requirements should an individual need to show that they have not exceeded the period of absence permitted. Relevant guidance will be updated to reflect the change made by the Order.
More generally, a flexible approach is being taken under the EU Settlement Scheme to the evidence of UK residence which may be relied upon. More information is available here: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-uk-residence.”
Q10: Article 9 will the requirement for fingerprints and a photo apply to all people without UK passports who apply for long-term leave to remain/residence after 30 March 2019? Can you confirm that that will include EEA and Swiss? What about those with dual nationality?
A10: The provisions made by the Order in relation to enrolment of biometrics are made in respect of applications to the EU Settlement Scheme made overseas, including by EEA and Swiss nationals.
The requirement would be a facial photograph for EEA and Swiss nationals and, in the case of non-EEA national family members, this could also be their fingerprints. Dual EEA/non-EEA citizens will be able to rely on their EEA nationality in applying under the scheme.
February 2019