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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. According to the TEU, the withdrawing country’s membership of the EU will automatically end two years after the triggering of Article 50, i.e. 29 March 2019, unless an extension to the negotiating period is approved.

A three-stage approach to a ‘wider immigration policy’ is underway
On 27 July 2017, the Home Secretary commissioned the Migration Advisory Committee (‘MAC’) to provide advice and evidence ‘in respect of current patterns of EU and EEA migration and the role of migration in the wider economy and society’.

The Government’s position is that, following the UK’s departure from the EU, this will enable it to ‘set and adjust the successor arrangements to meet the needs of our wider immigration policy, our economic circumstances and the deep and special partnership we seek to agree with the EU, as well as trade agreements with other countries’.

The Government has set out a three-stage approach to the UK’s departure from the EU from a free movement/immigration law perspective, as follows:

First phase
On 26 June 2017, the Government published a number of proposals concerning EU citizens and their family members who are already living in the UK or who are due to arrive in the UK in the near future.

 In general terms, the proposals set out that:

  • until the UK’s withdrawal from the EU, EU citizens and their family members who are resident in the UK will continue to benefit from the current rights conferred by EU law;
  • qualifying EU citizens and their family members who became resident in the UK before a specified date will be able to apply for settled status pursuant to UK law once they have accumulated five years’ continuous residence. This is regardless of whether or not they already hold permanent residence documents issued under EU law. Those who do not qualify for settled status immediately will need to apply for a temporary status until they do qualify;
  • a voluntary scheme to cater for the above applications will be introduced before the UK’s withdrawal from the EU. This scheme will become mandatory after withdrawal, subject to a grace period as referred to below;
  • those who have, under EU law, been required to demonstrate that they have held comprehensive sickness insurance (or have met one of the exemptions) in order to be considered a permanent resident will not have to meet this requirement in order to gain settled status under UK law;
  • those arriving after the specified date but before the UK leaves the EU (if the specified date is prior to then) will be allowed to remain in the UK for at least a temporary grace period and may, if they qualify depending on the rules that are put in place, subsequently be able to settle in the UK.

The specified date referred to above is as yet to be determined but will be no earlier than 29 March 2017 and no later than the date of the UK’s withdrawal from the EU.

Second phase
The second phase, according to the information published by the Government, is based on a temporary implementation period following the UK’s departure from the EU to ensure there is no ‘cliff-edge’.

The Government proposes that:

  • for those who are already living in the UK, there will be an automatic ‘grace period’ of up to two years to allow them to apply for documents evidencing their status (either settled or temporary) under the new rules. They will have a form of deemed status during the grace period;
  • for new EU citizen arrivals, there will be what the Government refers to as a ‘straightforward system’ of registration during the transitional period after the UK leaves the EU;
  • non-EU family members wishing to move to the UK will have to apply under a new set of rules.

Third phase and engagement from interested parties
The third phase concerns the long-term arrangements for the migration of EU citizens and their family members following the UK’s departure from the EU. As referred to above, the Government has commissioned the MAC to provide advice and evidence prior to designing the new system.

The new system could be flexible or it could impose strict requirements. Rules could be made on a sector by sector basis and/or a region by region basis.

With so much at stake, it is vital that interested parties engage with both the MAC and the Government. In her communication with the MAC, the Home Secretary stated that:

‘It is important that those affected contribute to the design of future arrangements and start to consider how they might adapt to a future immigration system’.

In addition to the MAC’s work, the Government has committed to undertake its own programme of engagement with interested parties including business, industry, trade unions, educational institutions and others. It is also important that charities and other organisations that care for often less well represented individuals ensure that lobbying takes place on behalf of vulnerable and dependent family members of EU citizens who may be unaware that their plans to move to the UK in the future to be with loved ones are at risk.

EU students
Whilst workers are referred to on numerous occasions, it is unfortunate that the Home Secretary’s commission to the MAC fails to directly refer to the migration process EU students will have to complete once the UK has left the EU, given that they are such a vital part of the picture.

In its proposals published on 26 June, the Government did confirm that ‘current EU students and those starting courses at an English university or further education institution in the 2017/18 and 2018/19 academic years will continue to be eligible for student support and home fee status for the duration of their course. We have also confirmed that EU citizens will also remain eligible to apply for Research Council PhD studentships at UK institutions for the 2017/18 and 2018/19 academic years’.

It also stated that ‘the Government will ensure those students who start a higher or further education course in or before the 2018/19 academic year will be eligible to apply for permission to stay here in order to complete their course’.

It is essential that the new migration registration scheme for EU citizens provides for a very simple registration process for EU students. The Home Secretary has committed to engage with educational institutions and therefore it is essential that education providers respond both individually and with their representative organisations to ensure that the sector’s voice is heard on this issue.

The MAC has been asked to report to the Government by September 2018 and to consider, if possible, producing interim reports in the meantime.

The MAC’s first Call for Evidence was duly published in early August 2017 with a deadline for submissions of 27 October 2017.

It is important that interested parties have an action plan for responding to requests for evidence to support both the MAC’s interim reports and its main report.

In the meantime, should applications for EU registration/residence documents still be made by EU nationals and their family members living in the UK?
First of all, whilst the Government has set out its proposals, the movement of EU citizens and their family members to the UK will continue to be governed by EU law, and the Free Movement Directive in particular, until the UK leaves the EU.

It is important to note that the Government has only issued proposals at this stage and these could change fairly significantly as the negotiations continue.

It should also be noted that EU citizens and their family members who meet the requirements of the UK’s Immigration Rules can apply for leave to remain in the UK under those Rules at any time. An EU citizen seeking to sponsor a partner under the Immigration Rules must be in possession of a document confirming their permanent residence in the UK.

Those applying to naturalise as a British citizen
Based on the information that has been published to date, we advise that EU citizens and their family members who wish to naturalise as a British citizen, and who will be eligible to apply to do so before the UK leaves the EU, continue to submit applications for documents confirming their permanent residence status. This is because possessing such a document is a mandatory requirement in the naturalisation process.

Permanent residents
An EU citizen or family member who has already acquired permanent residence status in the UK, or will do so before the UK leaves the EU, can currently apply for a document confirming that status. The Home Office’s position is that documents issued under current EU legislation will cease to be valid when the UK leaves the EU.

Those who are, at that time, in possession of a document confirming their permanent residence status may find, according to the proposals that have been published so far, that the process to apply for settled status under UK law, when the new system is rolled out, is less burdensome.

Family members
Family members who are planning to join EU citizens who are already living in or who are due to move to the UK imminently and who may struggle to meet the requirements of the UK’s domestic Immigration Rules (such as elderly relatives) should consider making relevant applications, as provided for under EU law, as soon as possible and certainly before the UK’s withdrawal from the EU. There is a strong risk in our opinion that this group of people, many of whom may be vulnerable and dependent on the EU citizen, may not be catered for in the post-Brexit immigration system.

At the moment extended family members of EU citizens, such as siblings, cousins, aunts and uncles, nieces and nephews, relatives by marriage and unmarried partners, must apply for a registration certificate. They should continue to make such applications. There is no requirement, however, for direct family members to make such applications and there appears to be little benefit in doing so at present.

Based on the information currently available, following the UK’s departure from the EU and subject to any transitional arrangements that are announced, all non-settled EU citizens and their family members – direct and extended – should expect to have to make an application under the new system to bring them into the UK’s domestic immigration system.

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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