Brexit Immigration Analysis
The United Kingdom will cease to be a member of the European Union on 31 January 2020 (midnight in Brussels and 11pm GMT). We explain what this means from a UK immigration perspective.
How did we get here? A brief history.
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. The revised Withdrawal Agreement was agreed between UK and EU negotiators on 17 October 2019.
The European Union (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. The Bill was ‘paused’ and a general election was called.
The general election took place on 12 December 2019 and the Conservative Party won with a significant majority.
The Withdrawal Agreement was signed in Brussels, and later in London, on 24 January 2020. The European Parliament will hold a vote on the deal on 29 January 2020. Once it has given consent, the Council will adopt the decision and the Withdrawal Agreement will come into force on the UK’s exit from the EU on 31 January 2020.
There will then follow a transition period (also referred to an as implementation period), due to end no earlier than 31 December 2020.
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.
What does free movement of EU citizens mean?
Whilst the UK has been a member of the EU, the movement of EU citizens and relevant family members has been governed by EU law.
Pursuant to Directive 2004/38/EC (commonly referred to as the ‘Citizens’ Directive’ or ‘Free Movement Directive’), EU citizens and their qualifying family members have been 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
An EU citizen who has completed a period of at least five years in the UK exercising Treaty Rights has automatically become a permanent resident of the UK, as have their qualifying family members.
EU citizens who have a document certifying permanent residence can apply to become naturalised as a British citizen once they have held that status for a period of a year.
What will change from an immigration perspective on 31 January 2020?
In practical terms, on 1 February 2020, EU citizens will still be able to enter and live in the UK. They will require no documentation other than evidence of their nationality (i.e. a passport or official identity document).
This is because a transition period will immediately come into force. The vast majority of EU citizens will continue to be able to live, work and study in the UK, in much the same way as they do now, until at least 31 December 2020.
Businesses, charities, universities, schools and colleges in the UK will be able to continue to employ or teach EU students during the transition period.
The EU Settlement Scheme
The UK Government has introduced 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.
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.
When a person who has obtained ILR under the EU Settlement Scheme has held that status for a year, they can apply to become naturalised as a British citizen.
EU citizens and family members who are already living in the UK or who arrive before 31 January 2020.
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 31 January 2020 and the end of the transition period
EU citizens and their family members who move to the UK between 31 January 2020 and the end of the transition period (currently set at 31 December 2020) will 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 will 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) will be able to join EU citizens living in the UK after the end of the transition 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 about Swiss, Icelandic, Lichtenstein and Norwegian nationals?
All of the above provisions also apply to Swiss, Icelandic, Lichtenstein and Norwegian nationals.
What happens if the UK and the EU do not agree the way forward?
Although the UK’s withdrawal from the EU is settled, there remains a risk that an agreement on the future relationship may not be reached before the end of the transition period.
You can find the Government’s ‘no-deal’ position, as it set out in October 2019, here. If a future agreement cannot be reached, we believe that it is likely that the Government would roll out measures along the same lines and we 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.