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 terms of the UK’s departure from the EU are yet to be finalised. A draft Withdrawal Agreement was published on 14 November 2018. The draft was approved by the other 27 EU member states on 25 November 2018 but MPs in the UK have, thus far, rejected the agreement leading to the downfall of Theresa May’s Government. The risk of the UK leaving the EU without an agreement having been reached cannot be ruled out, especially since Boris Johnson became Prime Minister in July 2019 and pledged that the UK will leave the EU on or before 31 October 2019, with or without a deal.
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. Such arrangements are likely to continue during any transition period, if there is an agreement between the UK and EU.
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 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 (see below), 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.
In light of Brexit, should an application for a regular EU document be made now?
In relation to the non-EU family members of EU citizens 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 changing from an immigration perspective?
As explained above, as matters presently stand the UK is set to leave the EU imminently. If an agreement is reached with the EU that contains the same, or similar, provisions on citizens’ rights as the Withdrawal Agreement, it is expected that there will be a transition period (also called an implementation period) ending no earlier than 31 December 2020. As such, if an agreement is reached, we expect that the vast majority of EU and UK citizens would continue to be able to live, work and study in the UK and EU members states in much the same way as now until at least December 2020.
The UK Government has also opened the EU Settlement Scheme for EU nationals. This operates under UK law. It will not be mandatory for EU nationals to make an application under the scheme whilst the UK remains a member of the EU and, in the event an agreement is reached, until at least the end of the transition period. The UK Government has proposed that 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.
The Government has provided some examples of ‘how EU citizens’ residence status in the UK will be affected after the UK’s exit from the EU’ which can be found here.
The EU Settlement Scheme – for EU citizens and family members who are currently living in the UK or who arrive before exit day.
The EU Settlement Scheme opened on a limited trial basis in August 2018. A more extensive trial, open to members of the public who meet 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 has 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 exit day and the end of the implementation period
If an agreement is reached that contains the same, or similar, provisions on citizens’ rights as the Withdrawal Agreement, then EU citizens and their family members who move to the UK between exit day and 31 December 2020 (or the end of the implementation period if this date changes) would be able to qualify for ILR under the EU Settlement Scheme once they have lived in the UK for a period of five years.
Close family members joining an EU citizen in the UK after the end of the implementation period
If an agreement is reached that contains the same provisions on citizens’ rights as the Withdrawal Agreement, 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.
EU citizens and their family members who subsequently move to the UK
A new immigration system is being designed which will cover those who subsequently move to the UK. Some limited information was provided in December in a White Paper.
What happens if an agreement between the EU and UK cannot be reached before the UK leaves the EU?
On 6 December 2018 the UK Government published a Policy Paper dealing with this issue. Further information was then published on 28 January 2019. The new Government under Boris Johnson initially appeared to retract the previous Government’s position, but then finally published a new Policy Paper in early September 2019 with similar provisions.
We have provided further information on the position in the event of a departure from the EU without an agreement here.
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 can provide initial advice in a telephone call or via email 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.
It is important to remember that making an application under the EU Settlement Scheme is unlikely to need a lawyer for the vast majority of people. Do take time to review the information about the scheme before deciding to instruct any law firm.
- 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;
- 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. If you would like to discuss your business’s needs with us or would like information about our services and fees, please contact us.
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.
Our immigration experts also sit on numerous working groups and committees and meet regularly with Home Office officials who are developing the new processes for EU citizens.
The latest information from the UK Government can be found here.