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 including the new EU Settlement Scheme.
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
Whilst the UK remains a member of the EU, EU citizens and their non-EU qualifying family members are 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 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 if the EU citizen or a family member makes an application for a document confirming their status.
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.
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.
In light of Brexit, should an application for a regular EU document be made now?
In relation to non-EU family members who wish to move to the UK to live with their EU relative now, we strongly advise them to apply for a document known as a Family Permit before they travel to the UK. Possessing such a document ensures ease of entry to the UK at the airport or port.
It is also important to remember that those who are extended family members must have a valid Family Permit or Residence Card throughout their stay in the UK.
At the moment, unless it is absolutely necessary, the Home Office is discouraging EU citizens and their direct family members who are already living in the UK from making applications for documents evidencing their status.
We do advise, however, that EU citizens and their family members who wish to naturalise as British citizens and those who have complex cases continue to submit applications for evidence of their status. We are finding that, on the whole, applications are being processed efficiently by the Home Office although time-frames can sometimes fluctuate significantly.
There are many scenarios that may be complex and may therefore require more detailed consideration. For example, we regularly advise EU citizens who wish to bring their elderly parents, adult children or unmarried partners to the UK.
We also assist those who wish to enforce a derivative right of residence and/or a right otherwise established by case-law (for example Surinder Singh, Teixeira, Chen and Zambrano).
We are also often asked to provide advice and assistance where an application for a Family Permit, residence or permanent residence document or any other type of visa has been made but has been refused. In such scenarios, we will review the case and provide advice on whether or not an appeal is the best course to take or if a fresh application would be a quicker and a more cost-effective option.
What is likely to change in the future?
It is currently envisaged that the UK will leave the EU on 29 March 2019.
The UK Government has confirmed that EU citizens and their family members will be able to continue to move to and live in the UK on the same basis as now (i.e. on a free movement basis) until 31 December 2020. The period between 29 March 2019 and 31 December 2020 is known as the ‘implementation period’.
EU citizens and their family members who already live in the UK, or who move to the UK before 31 December 2020, will have until 30 June 2021 to apply for a document under the EU Settlement Scheme. From 1 July 2021, EU citizens and their family members who were living in the UK by 31 December 2020 must hold or have applied for a UK immigration status document in order to be able to remain in the UK on a lawful basis.
The current rights of EU citizens and their families living in the UK will not change until 1 January 2021. From then on, UK immigration law will apply and those moving to the UK will need to make an application under the new immigration system which is currently being designed.
Whilst many issues are still being negotiated, provisional agreement between the UK and EU has been reached on a number of points relating to EU citizens living in the UK. There has however been no final agreement, as yet, so all proposals are still subject to negotiation.
Negotiations relating to citizens of the European Economic Area countries (Iceland, Lichtenstein and Norway) and Switzerland are still in progress.
Our immigration experts sit on numerous working groups and committees and meet regularly with Home Office officials who are developing the new processes for EU citizens.
The EU Settlement Scheme – for EU citizens and family members who are currently living in the UK or who arrive before 29 March 2019
The UK Government has opened a new scheme, called the EU Settlement Scheme, for EU nationals and their family members. This opened on a limited trial basis in August 2018. It is envisaged that the scheme will be fully open by March 2019.
The EU Settlement Scheme will enable 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 refered to as settled status. 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.
The Government has stated that applications under the EU Settlement Scheme will be made via a simple online registration process and that they will need to be made by 30 June 2021. Details of how to make an application are set out here.
It has also stated that it will not impose the comprehensive sickness insurance requirement in relation to the new application process. 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 self-sufficient person or a student, will be able to obtain ILR even if they have never held comprehensive sickness insurance.
EU citizens and family members who move to the UK between 29 March 2019 and 31 December 2020
The UK’s position is that EU citizens and their family members who move to the UK between 29 March 2019 and 31 December 2020 will be able to qualify for ILR once they have lived in the UK for a period of five years. They too will need to make an application under the EU Settlement Scheme, as referred to above.
Close family members joining an EU citizen in the UK after 31 December 2020
The UK Government has confirmed that close family members (spouses, civil and unmarried partners, dependent children and grandchildren and dependent parents and grandparents) will be able to join EU citizens living in the UK after 31 December 2020, where the relationship existed on that date.
EU citizens and their family members who move to the UK after 31 December 2020
A new immigration system is being designed which will set out the rules that EU citizens and their family members who move to the UK from 1 January 2021 will need to meet. Some limited information was provided in July 2018 in a Brexit White Paper and we expect more detail to be published on this in October 2018. The Migration Advisory Committee is currently considering the options and will be advising the Government.
What happens if an agreement between the EU and UK cannot be reached before the UK leaves the EU?
At the moment, the UK seeks to apply the EU’s laws relating to the free movement of people by way of domestic regulations called The Immigration (European Economic Area) Regulations 2016. The European Withdrawal Act 2018 already ensures that the existing arrangements will not come to an abrupt end when the UK leaves the EU.
In addition, as explained above, the UK is also in the process of rolling out a new EU Settlement Scheme, created solely by UK legislation, which is due to replace the current system in relation to EU nationals and their family members who already live in the UK, or who move to the UK, within the time-frames referred to above.
Most recently, the UK’s Brexit Secretary Dominic Raab has stated that the UK Government would “move swiftly” to secure the position of EU nationals living in the UK in the event of no-deal.
Whilst concern amongst EU nationals and their families is justified as to the exact arrangements in the event of a no-deal, it is clear that there is no risk that they will suddenly cease to have lawful status in the UK when dawn breaks on 30 March 2019. We expect further announcements to be made as to the exact measures that will be implemented to protect EU nationals and their family members in the event of a no-deal to be announced soon.
How we can assist
We are receiving calls and emails from large numbers of EU citizens and their family members and we understand that this is a worrying time for many people.
The Legal 500 says 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 always willing to provide initial advice in a telephone call or via email at no cost to help you to identify the best steps to take.
If making an application is the best option, we will usually be able to prepare the application 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.
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.
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 team also work with the world-renowned EU Rights Clinic in Brussels providing legal advice on complex EU law issues.
If you require legal assistance or would just like to discuss your situation with one of our experts on a no-obligation basis, please email us at firstname.lastname@example.org or call us.
The latest information from the UK Government can be found here.