UK immigration options for EU citizens after Brexit

Brexit Effect

It has been nearly a year since the end of the Brexit transition period on 31 December 2020. This date marked a cut-off point after which all EU citizens relocating to the UK for the first time are now treated like any other overseas citizen. This means that while it is possible to visit the UK for up to six months without requiring a visa, any longer trips will require prior entry clearance (a ‘visa’) – for EU citizens this is a digital status document rather than a physical visa document. The same goes for trips where the individual will be undertaking activities which are not permitted to visitors (e.g. working for a UK employer).

Indeed there are very strict limits placed on the activities that visitors are permitted to undertake in the UK, and visitors are also not allowed to take repeated trips to the UK as a means of living here (such as spending six months in the UK, leaving for two weeks, then returning for another six months, and so on). It is worth noting that this does not apply to Irish citizens, who can continue to live/work in the UK freely.

Visa Options

As such, EU citizens must now be aware of the different visa categories available to them if they are planning to spend any extended periods in the UK and/or undertake restricted activities here. Generally speaking, the available visa categories include:

Student Visa

Most students will now require a Student Visa in order to study in the UK for more than six months, for example if they will be attending a UK university. There is also a visa called ‘Parent of a Child Student’ which allows parents to accompany a child aged between 4 and 11 years old who will be attending an independent school in the UK. Importantly, only one parent can get this visa (so both parents cannot accompany the child), the parent’s main home must be maintained outside the UK, and there are restrictions on working and studying while in the UK as a Parent of a Child Student. This is a big change from the previous position where EU families could relocate to the UK with their children to allow the children to attend a British school.

Sponsored Work Visa

There are two main sponsored work visas: Intra Company Transfer and Skilled Worker. Both require a company in the UK to become a licensed sponsor in order to support the visa application, which requires the company to already be established to some extent in the UK (with at least one UK-based employee/office holder). This is also an expensive process, as a sponsored work visa for five years can cost up to £9,500 in government fees (not including family members, and not including legal fees). For a family of four, this cost rises to over £20,000. This means it is now harder for EU citizens to find jobs in the UK, as employers are less willing to go through the sponsorship process particularly for lower-paid jobs. There is also a skill level requirement, meaning lower-skilled jobs are often not eligible for sponsorship at all.

Government Authorised Exchange

Loosely, this is an internship visa lasting 12 to 18 months. This visa requires sponsorship, and the sponsor will be a third party company set up exclusively for this purpose (there are a number of them, e.g. GTI and Bunac) – so the employing company needs to apply to one of these third party sponsors to have the internship approved. The process is generally much less expensive and time intensive than a sponsored work visa, however this visa cannot be used to fill a permanent vacancy.

Frontier Worker Permit

This visa allows EU citizens to work in the UK while they live in another country. In order to be eligible, the worker must already have been working in the UK (while living outside the UK) by 31 December 2020, meaning this route is not helpful for individuals who are starting to work in the UK for the first time after this date. The other requirements are quite specific, e.g. the individual must have worked in the UK at least once every 12 months since starting work in the UK. In practice, this category has fairly narrow application and most EU workers will need to apply for a visa under another route.

Overseas Business Representatives (‘Sole Representatives’)

This category allows overseas businesses to send a senior employee to establish the company’s first UK presence. Importantly, the employee must not have majority ownership/control over the business, meaning small business owners are unlikely to be able to take advantage of this category themselves, and will instead need to send an employee (if they have one).

Start-Up and Innovator

These categories are intended for entrepreneurs with a new business idea. The Start-Up category is for less experienced entrepreneurs, while the Innovator category is for more experienced business people who have £50,000 to invest. These categories have seen very low numbers of applicants (particularly Innovators), largely due to the requirement for the business to be ‘endorsed’ by one of the Home Office’s approved endorsing bodies (which are all independent of the Home Office). The Home Office has given the endorsing bodies a lot of freedom to set their own criteria for endorsement, which has led to some confusion. Indeed many of the endorsing bodies are incubators or similar investment funds, who require the applicant to purchase one of their programs and/or give up a stake in the business – which is not an attractive prospect for many experienced business owners.

Global Talent Visa

This category allows world leaders and emerging world leaders to apply for a visa independently of any work sponsorship or business idea. The applicant must usually apply for endorsement from a Home Office approved endorsing body in their relevant field, which can be academia/research, arts and culture, or digital technology. Each endorsing body has its own criteria for endorsement, but importantly there are no strings attached (unlike the issues outlined in the Start-Up and Innovator category above). Once the endorsement has been obtained, the individual has three months to apply for their visa which can be valid for up to five years. Costs are still a factor particularly for younger applicants, as a five year visa will attract government fees of at least £3,728.

Tier 1 (Investor)

This category is for individuals who have at least £2 million available to invest in UK companies (subject to restrictions). This will only be of use to a select few individuals, for fairly obvious reasons.

Partner Visa

For EU nationals who are married to a British or ‘settled’ person, it is possible to apply for a Partner Visa under Appendix FM. This category is also open to civil partnerships and relationships ‘akin’ to marriage (i.e. where the couple has cohabited for at least two years). This is a surprisingly difficult and document-intensive process with a high refusal rate. It usually involves the British/settled spouse showing that they earn a salary of at least £18,600, and the supporting documents can get very complicated if this money is earned through self-employment or where multiple jobs are being combined to make up the salary level. It is also possible to rely on cash savings to meet this ‘financial requirement’, however the level is much higher – where cash savings alone are being relied upon, the level is £62,500 which must be held by the applicant and/or their partner for at least six months beforehand. The financial levels also increase for each non-British child who is applying as a dependant. It is quite easy to see a situation where this category would provide little relief – for example where the British/settled partner is a stay at home mother, or where the couple lives in a region where the average salary is below £18,600.

Looking Forward

Notably absent is a category for retired persons of independent means – this visa category was closed to new applicant many years ago, and there is currently no visa route available to individuals who wish to live in the UK and be self-sufficient (including those with private health insurance). It remains to be seen whether the UK Government will create a route for this purpose in light of Brexit, given that reciprocal arrangements with the EU are likely to be needed (as so many Brits traditionally retire in Europe).

Finally, the Home Office has announced plans to launch a new Global Business Mobility visa in Spring 2022, which should provide a streamlined immigration route for overseas companies to transfer workers to the UK both to expand and establish their business. This route will combine and replace the existing Intra Company Transfer sponsored work visa, the Sole Representative visa, and arrangements regarding contractual service providers and independent professionals. The details of this new route have not yet been published so it remains to be seen how effective it will be.

If you are a European citizen or an employer of European citizen and you’d like to understand the best UK immigration solution, please contact our experienced team of UK immigration lawyers - we’re looking forward to hearing from you!