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Brexit Immigration Analysis

Following the outcome of the referendum on 23 June 2016, when the British public voted to leave the European Union, the UK Government is currently negotiating the future relationship with the EU. Here we consider Brexit from a UK immigration law perspective.

In a letter dated 29 March 2017, the Prime Minister formally commenced the process for leaving the EU by notifying the President of the European Council of the UK’s intention to withdraw from the EU, in accordance with Article 50 of the Treaty on European Union (TEU) (as inserted by the Treaty of Lisbon).

On 30 March 2017, the Government then published a White Paper on the Great Repeal Bill entitled ‘Legislating for the United Kingdom’s withdrawal from the European Union’. This sets out how it intends to legislate for the withdrawal from the EU and explains that EU law is to be converted into domestic law on the date the UK formally leaves the EU:

‘The same rules and laws will apply on the day after exit as on the day before.’

On 31 March 2017, the European Council issued draft guidelines setting out the overall position and principles the EU will pursue and defining the framework, from the EU’s perspective, for negotiations under Article 50 TEU.

In June 2017 a general election was held in the UK resulting in a hung parliament.

Formal negotiations with the EU then commenced.

On 8 December 2017, the European Commission and UK Government set out an agreement in principle on a number of areas including the rights of EU citizens after the UK leaves the EU. Importantly, the EU declared that the agreement reached amounted to ‘sufficient progress’ such that phase 2 – talks on the framework of a trade deal and other future relationship issues – can begin.

The joint report and accompanying technical note set out an agreement in principle following protracted negotiations between the UK and EU. The report makes it clear that ‘nothing is agreed until everything is agreed’ and it should be noted that the proposals could change before a final agreement is reached. The final agreement will be set out in a Withdrawal Agreement, to be enshrined into UK legislation by an Implementation Bill.

The report reflects some of the proposals made by the UK in its policy paper, which we considered here.

One significant point is that the agreement allows the UK to require all EU citizens residing in the UK who wish to remain to acquire a new status, to be obtained before the end of a transition period. This is as yet to be confirmed but may be up to two years after the UK leaves the EU on 29 March 2019 (the ‘transition period’). EU citizens may be able to make an application, on a voluntary basis, from next year.

We have provided a summary below of the key points that are likely to be of most interest to our clients.

Before the UK leaves the EU on 29 March 2019:

  • EU citizens and their qualifying family members who live in the UK will be able to continue to do so. Those seeking to live in the UK will be able to enter, as now, without restriction;
  • those who are living in the UK and exercising free movement rights (i.e. working, self-sufficient, self-employed, studying) and their qualifying family members will continue to be able to make applications for residence and permanent residence documents under EU law, as now. (The Home Office is discouraging such applications and we would advise that it is only necessary for extended family members to make them or for those who require a permanent residence document in order to apply to naturalise as a British citizen);
  • the UK Government intends to allow those who qualify for settled status under the new rules (i.e. they have lived in the UK for at least five years exercising free movement rights or are a qualifying family member) to be able to make applications from 2018. It intends that the requirements to acquire this status are likely to be less onerous than the requirements to acquire a document certifying permanent residence (which we have set out here). For example, there will be a streamlined application process drawing on existing data held by HMRC and other departments and there will be no need to hold comprehensive sickness insurance. There will be criminality and security checks. EU citizens who already hold permanent residence documents will be able to make an application for settled status free of charge.

Once the UK has left the EU:

  • EU citizens and their qualifying family members who were living in the UK as of 29 March 2019 will be able to remain. However, they are likely to be required to make an application for a permanent or temporary status document before the end of the transition period;
  • providing the EU citizen and their qualifying family members commenced living in the UK before 29 March 2019, they will qualify to apply for settled status after five years;
  • close family members (spouses, dependent children, etc.) will be entitled to join EU citizens after the UK has left the EU, where the relationship existed on 29 March 2019 and continues to exist. Children born later to at least one parent who qualifies to remain will also be able to reside in the UK;
  • EU citizens who enter the UK after 29 March 2019 are likely to be required to register if they enter the UK before the end of the transition period or apply under new domestic legislation, as yet to be determined, if they enter after it.

Clarity is still needed concerning a number of categories of EU citizens and their family members, including those who currently enjoy rights established by case-law, for example, those applying under Surinder Singh, Texeira and Zambrano and the position of future spouses and partners.

The jurisdiction of the Court of Justice of the European Union (CJEU) has been a sticking point in these negotiations. The report sets out that UK courts will have regard to CJEU rulings and can ask questions of interpretation for up to eight years after the UK leaves the EU. An independent body will monitor the implementation and application of citizens’ rights. Its scope and functions have yet to be agreed.

The European Commission has also produced a separate report on these negotiations as well as a question and answer sheet. The Home Office has set out examples of how the proposed arrangements will work in practice and a guidance document.

There are some differences between the two positions and further agreements will need to be made. In particular, the EU Commission would like the independent body to receive complaints by EU citizens and also initiate legal actions before UK courts on their behalf. Similarly, the EU Commission considers that future family members, that is, those partners and spouses who marry, or enter a durable relationship with, an EU citizen after the UK leaves the EU, should be able to benefit from the same rules as family members.

Please note that an already fairly complex field of law is about to become even more complicated. The above provides only a very general overview of where things currently are and we recommend that advice on complicated cases is sought as quickly as possible.

We will keep this page up to date as further details are published.

About us and our services for individuals, employers and education providers
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. The firm’s founder, Nichola Carter, also works with the world-renowned EU Rights Clinic in Brussels providing legal advice on complex EU law issues.

We offer a range of fixed fee services for individuals and their family members who require advice on the options available and assistance in preparing applications.

We also assist businesses and education providers with their Brexit preparation strategies by:

  • running workshops and seminars for HR staff and EEA/EU employees;
  • advising on the organisation’s workforce/student data and prevention of illegal working/right to study strategies and providing feedback and support;
  • providing assistance with the preparation of relevant applications for individual employees and their family members;
  • providing advice where necessary on alternative immigration options; and
  • offering tailored services to meet specific requirements.

If you require legal assistance or would just like to discuss your situation with one of our experts on a no-obligation basis, please call us.

You can find further information on Brexit here.

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