EU nationals’ right to work in the UK post Brexit – Updated

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End of free movement

Before Brexit, European nationals could live and work in the UK for long periods without needing a visa or any other form of permit, so long as they were ‘exercising Treaty rights’ (i.e. engaging in work, being self-employed or self-sufficient).  They did not need to have evidence of this but if they wanted to, they could apply for a permanent residence card after spending a continuous period of 5 years in the UK.  ‘Permanent residence’ showed that the holder was not subject to immigration control and could stay in the UK indefinitely (although the status could be lost if the holder was out of the UK for more than 2 years).  However few people applied for permanent residence as the process was challenging, with applicants required to submit an 80-odd page application form and there were cumbersome evidentiary requirements.

This right of free movement still exists but it will end after 11pm on 31 December 2020. Anyone wishing to come and work in the UK after this time, including European nationals, will be subject to the UK’s new immigration system.  Skilled EU nationals for example are most likely to need a Tier 2 General visa and to be sponsored by a sponsor licence holder.

EU Settlement Scheme

European nationals (and Swiss and EFTA state nationals) who are in the UK now can apply for either settled or pre-settled status under the EU Settlement Scheme.  Individuals have until 31 June 2021 to make an application and once they hold settled or pre-settled status they will be allowed to live and work in the UK without being subject to the new immigration rules.  The application process is very simple and can be done via an app or online.  Anyone who was considering applying for permanent residence should instead apply under the EU Settlement Scheme and anyone holding a permanent residence card must switch to settled status under the Settlement Scheme to continue working in the UK from July 2021.  EU nationals who have not applied under the EU Settlement Scheme by 31 June 2021 will not be able to continue working in the UK unless they make a relevant application under the new immigration system.

Settled status

Settled status is equal to permanent residency and applies where you have lived in the UK continuously for at least 6 months in any 12-month period for 5 years in a row. Applicants will need to evidence this when they apply, either by including their National Insurance number in the online application (where an automated search will take place against HMRC and DWP databases to confirm residence), or by submitting documentary evidence. Applicants will also have to have their ID verified and undergo criminal record and suitability checks. There is no fee for making the application and, before the pandemic, applications were taking around 1-2 weeks to be processed.  Once an applicant has been granted settled status, they will have the right to stay in the UK permanently without being subject to immigration control.  They can apply for British citizenship after 12 months of holding settled status, work and study in the UK, use the NHS and access public services such as benefits and pensions. However, settled status will lapse should the holder leave the UK for more than 5 years, so residence is something that needs to be maintained.

Pre-settled status

If a European national has not lived in the UK continuously for 5 years at the time they make an application, they should apply for pre-settled status. Once they have reached 5 years continuous residence, they must apply to switch to settled status but this can be done after 31 June 2021 (providing the application for pre-settled status was made before that date). The application process is very similar to that of settled status and there is no application fee. Once an applicant has been granted pre-settled status, they will be able to work in the UK, use the NHS, enrol in education and access public funds. The only difference to settled status is that applicants are unable to apply for British citizenship (but they can do once they have held settled status for 12 months).

British nationality

Once the individual has either a permanent residence document/settled status, the individual must wait a further 12 months (unless married to a British national then he/she can apply immediately) before applying for citizenship. In order to apply for citizenship, the applicant must:

  • be over 18 years old
  • be of ‘good character’. Generally, this means not having committed any serious crimes or immigration fraud
  • be currently living in the UK
  • meet the English language requirements
  • pass the ‘Life in the UK’ test.

Irish citizens

The Common Travel Arrangements with Ireland establish that Irish Citizens have a special legal status in the UK. The Republic of Ireland is not considered to be a ‘foreign country’ for the purpose of UK laws, and Irish citizens are not considered to be ‘aliens’. Irish citizens are treated as if they have permanent immigration permission to remain in the UK from the date they take up ‘ordinary residence’ here. The current EU withdrawal legislation before Parliament has a specific passage dedicated to restating the rights of Irish Citizens in the UK once they can no longer rely on their EU rights to free movement. Therefore, whilst the Republic of Ireland continues to be a member of the European Union, both the EU and UK have provisions to preserve the rights of their citizens present in each other’s territories.

Irish Citizens who come to reside in the UK are ‘settled’, and therefore there are no requirements to obtain a work or residence permit. There is no requirement for Irish Citizens to register under the EU Settlement scheme. However, the arrangements do not provide for non-Irish and non-UK family members to reside with Irish Citizens in the UK and therefore family members will need to register or apply for entry under the EU Settlement Scheme.