Brexit Immigration Analysis
On 29 March 2017, following a referendum that was held on 23 June 2016, the UK gave formal notification in accordance with Article 50 of the Treaty on European Union of its intention to withdraw from the European Union.
The first draft Withdrawal Agreement was published on 14 November 2018. MPs in the UK rejected the agreement leading to the downfall of Theresa May’s Government.
Boris Johnson became Prime Minister in July 2019 and pledged that the UK would leave the EU on or before 31 October 2019, with or without a deal.
A revised draft Withdrawal Agreement was published on 17 October 2019 and the October EU (Withdrawal Agreement) Bill was laid before parliament on 21 October 2019. This passed its second reading on 22 October 2019 but the Government lost a vote to fast-track the legislation through Parliament, ‘paused’ the bill and called a general election.
The EU agreed to the UK’s request for a further extension to Article 50 and granted this until 31 January 2020.
The general election took place on 12 December 2019 and the Conservative Party won with a majority.
The December EU (Withdrawal Agreement) Bill (WAB) passed its first and second reading in the week before Christmas. The Government’s intention is that the bill is to become law in time for 31 January 2020, when the UK is set to leave the EU.
You can find our articles covering key stages and developments in the negotiations, along with other matters of interest to EU citizens, here. We have set out below up to date practical information for EU citizens and their family members, taking into account the latest developments from the EU and UK. This information will be updated as new practical details are released.
The current position for EU citizens and their family members
For as long as the UK remains a member of the EU, EU citizens and their non-EU qualifying family members will continue to be able to enter the UK freely unless, in very rare circumstances, a decision is taken to exclude them on public policy, public security or public health grounds.
Pursuant to EU free movement law, namely Directive 2004/38/EC (commonly referred to as the ‘Citizens’ Directive’ or ‘Free Movement Directive’), EU citizens and their qualifying family members are lawfully entitled to live in any EU member state, including the UK, for more than three months providing the EU citizen is exercising Treaty Rights. In brief, exercising Treaty Rights means that they must be:
- self-sufficient*; or
EU citizens can also benefit from a range of other rights that are separate to free movement.
In reality, checks that EU citizens are exercising Treaty Rights (or any other rights) only generally happen in the UK if the EU citizen or a family member makes an application, under EU law, for a document confirming their status, including a document to confirm that they are a permanent resident of the UK.
Under current EU law, an EU citizen who has completed a period of at least five years in the UK exercising Treaty Rights automatically becomes a permanent resident of the UK, as do their qualifying family members. They must obtain a document to demonstrate this if they wish to apply to naturalise as a British citizen.
Documents can be applied for to confirm the status of the EU citizen and their qualifying family members who live in the UK. However, historically many people have not made such applications unless they have intended to apply to naturalise as a British citizen or a family member is an ‘extended family member’ and is therefore required to hold such a document.
*If an application is made for a document evidencing status under EU law, the Home Office will require evidence that students and self-sufficient persons have held comprehensive sickness insurance, as required under EU law, during any period to be regarded as exercising Treaty Rights. The UK has stated that the comprehensive sickness insurance requirement is not a requirement under the EU Settlement Scheme, which we cover below.
What is changing from an immigration perspective?
If the UK leaves the EU with a deal, there will be a transition period (also called an implementation period) ending no earlier than 31 December 2020. The vast majority of EU citizens would continue to be able to live, work and study in the UK in much the same way as now until at least 31 December 2020.
The UK Government is currently running the EU Settlement Scheme for EU nationals. This is currently a voluntary scheme that operates under UK law.
The EU Settlement Scheme opened on a limited trial basis in August 2018. A more extensive trial, for members of the public who met the requirements for entry into it, commenced on 21 January 2019. The scheme fully opened at the end of March 2019.
The EU Settlement Scheme enables EU citizens and their family members who have lived in the UK for at least five years, by the time the application is made, to obtain indefinite leave to remain (ILR), also referred to as settled status, under UK law. Those who have not lived in the UK for five years will obtain limited leave to remain, also referred to as pre-settled status. The provisions for ILR or limited leave to remain are contained in Appendix EU of the Immigration Rules. The guidance for Home Office caseworkers to follow when deciding an application can be found here.
Applications are made via an online registration process and further details are set out here.
The Government is not imposing a comprehensive sickness insurance requirement to the EU Settlement Scheme. This means that, for example, an EU citizen who has lived in the UK for a five-year period, during which any time was spent as a student, will be able to obtain ILR even if they have never held comprehensive sickness insurance.
It is not currently mandatory to make an application under the scheme. If the UK leaves the EU with a deal, under current proposals applicants will have until 30 June 2021 to apply under the EU Settlement Scheme.
The Government has provided some examples of how a person’s residence status in the UK will be affected after the UK’s exit from the EU. These can be found here.
The campaign group, the3million, has set out a number of concerns and questions about the EU Settlement Scheme which potential applicants may wish to read before applying. These can be accessed here.
The EU Settlement Scheme – for EU citizens and family members who are currently living in the UK or who arrive before exit day.
EU citizens who are already living in the UK may wish to consider making an application under the scheme sooner rather than later so they can clearly demonstrate their right to be in the UK. However, they do not have to make an application until the cut off date, and only then if they wish to continue to live in the UK.
EU citizens and family members who move to the UK between exit day and the end of the transition period
If the UK leaves the EU with a deal, it is expected that EU citizens and their family members who move to the UK between exit day and 31 December 2020 (or the end of the transition period if this date changes) would be able to make an application for ILR under the EU Settlement Scheme once they have lived in the UK for a period of five years. Applications would need to be made by 30 June 2021.
Close family members joining an EU citizen in the UK after the end of the transition period
Under the EU Settlement Scheme, close family members (spouses, civil and unmarried partners, dependent children and grandchildren and dependent parents and grandparents) would be able to join EU citizens living in the UK after the end of the implementation period, where the relationship existed on that date. Applications would also be able to be made under the scheme for children born overseas.
EU citizens who move to the UK from 1 January 2021
A new immigration system is being designed which will cover those who subsequently move to the UK. Some limited information was provided in December 2018 in a White Paper and also in October 2019 in the Queen’s Speech. In September 2019, the Migration Advisory Committee was asked to look into the ‘Australian-style’ points-based system and is currently undertaking that work.
What happens if the UK and the EU do not agree the way forward?
The UK’s withdrawal from the EU is almost settled. There is however still a risk that an agreement on the future relationship may not be reached by the December 2020 – a date the Government has imposed on itself.
You can find the Government’s position on a ‘no-deal’ Brexit, as it set out in October 2019, here. We believe that it is likely that the Government would roll out measures along the same lines and will continue to track this issue.
How we can assist
We are ranked by Chambers and Partners, The Legal 500, Who’s Who Legal and other leading publications for our high-quality immigration law services.
We are partners with Here for Good, a charity that provides pro-bono advice to vulnerable and other eligible EU citizens. Members of our team also work with the world-renowned EU Rights Clinic in Brussels, providing legal advice on complex EU law issues. We also sit on numerous working groups and committees, meeting regularly with Home Office officials.
Services for businesses and education providers
We offer the following range of services to businesses and education providers that are designed to enable them to offer enhanced support to their employees and HR teams:
- presentations to EEA employees to explain the EU Settlement Scheme and other options available, including how to apply to naturalise as a British citizen;
- one-on-one sessions in person or via video conferencing to provide personal support to employees;
- EU Settlement Scheme application filing sessions where our team will use our technology to enable employees to submit their applications;
- preparation of other applications for EEA staff and their family members such as applications for permanent residence documents and applications to naturalise as a British citizen;
- bespoke training for HR teams and legal advice on how best to manage Brexit immigration related matters;
- advice and assistance on Sponsor Licence, Tier 2 and all other work-related immigration matters;
- information on proposals for the new immigration system due to come into force from January 2021, including how to engage with the Government on the design of the system;
- advice on conducting compliant right to work checks;
- discounted rates to employees and further immigration law advice and assistance as required.
We have designed a flexible fixed fee structure which is tailored to the specific services the employer requires.
Services for individuals
We understand that this is a worrying time for EU nationals and their family members.
The Legal 500 has said that our team provides ‘that extra bit of listening, care and explanation that engenders the client’s trust and makes them feel comfortable’. Our immigration experts are on hand to provide legal advice as needed.
We will usually be able to prepare applications, for example, under the EU Settlement Scheme or to naturalise as a British citizen, on a fixed fee basis. If your situation is complex, we will analyse your situation and provide you with legal advice in a cost-effective way working to an agreed budget.
For the vast majority of people, making an application under the EU Settlement Scheme is unlikely to need a lawyer. Do take time to review the scheme before deciding to instruct any law firm. The latest information from the UK Government about the scheme can be found here.
If you would like to discuss your needs, or would like information about our services and fees, please contact us.