End of free movement rights

The right of EU and European Economic Area (EEA—Iceland, Liechtenstein and Norway) citizens to exercise free movement rights by coming to the UK ended on 31 December 2020, the end of the Brexit transition period. The Government legislated in the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 to end freedom of movement and to make EU/EEA citizens subject to UK immigration controls from 1 January 2021 in the same way as citizens of other countries. However, this does not apply to Irish citizens. Under the Common Travel Area arrangements, Irish citizens do not need permission to enter or remain in the UK, including a visa, any form of residence permit or employment permit. EU/EEA citizens who had already exercised their free movement rights and were living in the UK before 31 December 2020 had until 30 June 2021 to apply to the UK’s EU Settlement Scheme to secure their immigration status.

The immigration system is complex. This briefing cannot give a comprehensive overview but outlines some key features and issues. Nothing in this briefing is intended to constitute immigration advice. A suitably qualified professional should be consulted for specific advice.

EU and EEA citizens arriving since 1 January 2021

From 1 January 2021, UK immigration rules have applied to arrivals from the EU and the EEA. A visa is not required by EU or EEA citizens to visit the UK (other than those coming to get married) but a visa is required by those coming to work, study for longer than six months or join family.

Short visits without a visa

EU, EEA and Swiss citizens can travel to the UK for holidays or short trips without needing a visa. As non-visa nationals, they can visit the UK as a ‘standard visitor’ without needing to apply for a visa in advance of travel and can seek entry at the UK border. Standard visitors are able to stay in the UK for up to six months. The Government has explained that there is no specified maximum period which an individual can spend in the UK over a given period, such as six months in every twelve months, as long as each individual visit does not exceed the maximum for a single visit, normally six months. (In contrast, UK citizens making short trips to the EU, EEA or Switzerland can stay without a visa for up to 90 days in any 180-day period.) However, the Government has said that visitors to the UK may be refused entry if it is “clear from their travel history they are seeking to remain in the UK for extended periods or making the UK their home via repeated visits”.

The Immigration Rules set out a list of permitted activities for visitors. For instance, they can visit friends and family, come to the UK on holiday, volunteer for up to 30 days with a registered charity or study for up to six months at an accredited institution that is not a state-funded school or academy. Visitors are allowed to undertake some general business activities, including: attending meetings, conferences, seminars and interviews; giving talks or speeches on a non-commercial basis; negotiating and signing deals and contracts; attending trade fairs for promotional purposes (but not directly selling); carrying out site visits and inspections; gathering information for their employment overseas; and being briefed on the requirements of a UK-based customer, as long as any work for the customer is done outside the UK. However, without a visa, business visitors cannot do paid or unpaid work for a UK company or as a self-employed person, do a work placement or internship, sell directly to the public or provide goods and services.

The Government is planning to introduce an electronic travel authorisation (ETA) scheme for people visiting the UK who do not currently need a visa for short stays. It says this will allow security checks to be conducted and more informed decisions to be taken at an earlier stage in advance of travel as to whether individuals should be granted permission to travel to the UK. Permission to travel will need to be checked and confirmed by carriers prior to boarding. The scheme is intended to be similar to the United States’ Electronic System for Travel Authorization (ESTA). The EU is planning to introduce a similar scheme for visa-exempt visitors travelling to the Schengen area. The Government is legislating for the ETA scheme in the Nationality and Borders Bill currently before the House of Commons.

Press reports in May 2021 highlighted several cases of EU nationals being denied entry to the UK and sent to immigration removal centres. In some cases, EU travellers were reportedly trying to enter the UK to stay here while looking for work. Press reports also suggested that some travellers had been stopped from entering the UK to attend a job interview, although this is allowed under the visitor rules. The European Commission raised concerns about the treatment of EU citizens. The Government’s position is that: “Individuals without the necessary immigration permission for the activities that they intend to undertake in the UK, or where Border Force staff do not believe they meet the requirements for entry as a visitor, may be refused permission to enter at the border, which makes them liable for detention”. It explained that the removal of individuals denied entry had been delayed in some cases because of Covid-19 restrictions (testing requirements and lack of flights). It said frontline officers had now been told to favour immigration bail rather than detention in that situation.

Points-based immigration system

As well as ending freedom of movement and making EU and EEA citizens subject to immigration controls, the Government has made changes to the immigration system overall, introducing a points-based system. It set out its approach in a policy statement in February 2020:

From 1 January 2021, EU and non-EU citizens will be treated equally. We will reduce overall levels of migration and give top priority to those with the highest skills and the greatest talents: scientists, engineers, academics and other highly skilled workers […]

We will replace free movement with the UK’s points-based system to cater for the most highly skilled workers, skilled workers, students and a range of other specialist work routes including routes for global leaders and innovators.

We will not introduce a general low-skilled or temporary work route. We need to shift the focus of our economy away from a reliance on cheap labour from Europe and instead concentrate on investment in technology and automation. Employers will need to adjust.

The Government’s roll-out of the point-based immigration system so far, and further changes it intends to deliver over the next year and beyond, are summarised in a strategy statement it published in May 2021.

The Government states that for many EU or EEA citizens seeking permission to work in the UK, the route will be to apply for a skilled worker visa. Other routes are available, such as an intra-company transfer visa (for those transferring to their employer’s UK branch), a family member visa, or a global talent visa (for highly skilled workers, such as leaders in academia, research, arts and culture, or digital technology).

To be eligible for a skilled a worker visa, applicants must demonstrate:

  • they have a job offer from a Home Office-licensed sponsor;
  • the job is at the required skill level (RQF3 or above, equivalent to A-level);
  • they will be paid the relevant minimum salary threshold by their sponsor (normally £26,500 or the going rate for the job, whichever is higher); and
  • they can speak English at the required level.

If applicants earn less than the minimum salary, but above £20,480, they may still be able to apply under the points-based system by trading points on specific characteristics against the salary. For example, if their job offer is in a shortage occupation or they have a PhD relevant to the job, this may give them additional points to make up for the lower salary.

Impact on particular sectors

When the Government introduced the new points-based system, it prompted concerns that the minimum salary and skill requirements and the lack of an immigration route for low-paid workers would create labour shortages in sectors that had been reliant on EU workers doing low-paid, low-skill (or perceived low-skill) or seasonal work. This is discussed in further detail in the House of Commons Library briefing on The New Points-Based Immigration System.

Over recent weeks, a shortage of heavy goods vehicle (HGV) drivers has highlighted the combined impact of Covid-19, the end of the transition period and the new points-based system. The industry groups Logistics UK and the British Retail Consortium estimate there is currently a shortfall of around 90,000 HGV drivers. They said a pre-existing shortage has been exacerbated by around 25,000 EU drivers returning home during the pandemic and following the end of the transition period, with the pandemic also halting the training and testing of new UK drivers to replace them. The meat processing industry has also been affected by a combination of EU workers returning home, the inability to bring in trained migrant workers under the points-based system, and absences among existing workers due to the ‘pingdemic’. Companies such as McDonald’s, Nandos, KFC, Greggs and supermarkets have all recently experienced disruption to their supply chains owing to this situation.

Logistics UK and the British Retail Consortium have called on the Government to grant temporary work visas to HGV drivers from the EU as one way of easing the problem until new UK drivers become qualified. The Road Haulage Association is urging the Government to include HGV drivers on the shortage occupation list and to allow young people under 30 from the EU and EEA to work in the UK as short-term measures. The British Meat Processors’ Association wants the Government to add butchers to the shortage occupation list to temporarily fill vacancies in the sector from overseas until British workers can be trained. The director general of the CBI has also called for the Government to add more occupations to the shortage list, arguing the Government should not assume the labour market will “self-correct”.

The Government has resisted these calls to make changes to the immigration system. A Government spokesperson said in August 2021: “The British people repeatedly voted to end free movement and take back control of our immigration system and employers should invest in our domestic workforce instead of relying on labour from abroad”. The Government announced a package of measures in July intended to address the HGV driver shortage, including consulting on streamlining the process for drivers to gain an HGV licence, working with industry to improve drivers’ working conditions, and a temporary relaxation in the rules on HGV drivers’ hours to enable them to make slightly longer journeys.

EU and EEA citizens living in the UK before 1 January 2021: EU Settlement Scheme

EU and EEA citizens and their family members who were living in the UK under free movement rights before the end of the Brexit transition (31 December 2020) were eligible to apply to the EU Settlement Scheme (EUSS). The EUSS implements the citizens’ rights provisions of the UK-EU Withdrawal Agreement and the UK-EEA Separation Agreement. Provisions in these agreements preserve certain rights of EU/EEA citizens living in the UK and UK citizens living in the EU/EEA in areas such as residence, the right to work, and access to benefits and public services. Successful applicants to the scheme are granted pre-settled status (limited to leave to remain) if they have lived in the UK for less than five years or settled status (indefinite leave to remain) if they have at least five years’ continuous residence in the UK.

The deadline for applications to the EUSS was 30 June 2021. By that date, the Home Office had received 6,015,400 applications. Some of these were repeat applications, so the Home Office estimates that 5.5 million people had applied to the scheme by the deadline. Of the applications concluded by the end of June 2021, 52% were granted pre-settled status and 43% settled status. The Home Office refused 2% of applications, while 1% were withdrawn or void, and another 1% were invalid.

A further 58,200 applications were submitted in July 2021. Some of these will have been late applications after the deadline, but others will have been from people applying to move from pre-settled to settled status, or for whom the 30 June 2021 deadline does not apply (eg family members arriving in the UK after 1 April 2021 to join someone covered by the scheme who was in the UK before the end of the transition period, or children born in the UK after 1 April 2021 to people covered by the scheme).

Concerns have been raised, for example by the campaign group The3million, about what will happen to people who missed the application deadline and do not have a valid immigration status after 30 June 2021. The Government has said that people may still apply for status under the scheme if they had “reasonable grounds” for missing the deadline. A non-exhaustive list of “reasonable grounds” is set out on the GOV.UK website. In addition to the grounds in the list, the Government has said in answer to parliamentary questions that reasonable grounds “includes where someone has lived in the UK for many years and did not realise they had to apply”. Home Office caseworker guidance says the scope to make a late application remains indefinitely, but that the longer the time that has elapsed since the deadline, the harder it will be for an applicant to prove there were reasonable grounds for missing it.

Concerns have also been raised about people who applied before the deadline, but whose case has not yet been decided. The Independent Monitoring Authority (IMA)—the official UK body set up to monitor citizens’ rights under the Withdrawal Agreement and UK-EEA Separate Agreement—has reminded public bodies of “the need for care in considering the status of citizens who have applied to the EUSS but have not yet received the results of their application”. The IMA said it had received reports of local authorities warning EU citizens they would be removed from housing waiting lists if they cannot provide proof of settled status, despite the fact those waiting the outcome of their application should have their rights protected until a decision has been made. The Home Office announced in August that people applying late to the scheme would also have their rights protected until their application and any appeal is decided.

The3million group is campaigning for EU citizens who have been granted settled or pre-settled status to be given physical proof of their immigration status. To prove their status, holders need to obtain a digital share code via GOV.UK, which an employer, landlord or local council can then use to view their status online. The3million argues that this process is vulnerable to technical failures at each stage, and that EU citizens could be discriminated against where employers and landlords are not familiar with checking someone’s immigration status digitally. The House of Lords European Affairs Committee recently argued that the absence of a physical document creates the risk that many EU citizens, including the elderly and those who are digitally challenged, will struggle to prove their rights.

A further issue is that pre-settled status gives the holder five years’ temporary leave to remain in the UK. To stay in the UK beyond this, they need to apply to the EUSS again for settled status. They can do this once they reach five years’ continuous residence; this may be before the five years’ temporary leave to remain expires. The House of Lords European Affairs Committee has expressed concerns that EU citizens may lose their rights in the coming years if they do not successfully apply for settled status. The Home Office intends to send out reminders, but the committee suggested keeping track of millions of individual deadlines would be more complex than the initial roll-out of the scheme, and that it would depend on EU citizens keeping their contact details up to date.

What next?

Baroness Quin (Labour) has tabled the following question for short debate in the House of Lords:

To ask Her Majesty’s Government what plans they have to review their (1) immigration, and (2) visa, policies in relation to the member countries of (a) the European Union, and (2) the European Economic Area.

At the time of writing, no date for debate has been scheduled.

Image by Rocco Dipoppa from Unsplash.