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No Deal scenario outlined: Which rules apply to EU citizens arriving after 29 March 2019?

29 January 2019 James Ritchie Brexit & EU Migration

On Monday the UK government published a policy paper entitled ‘Immigration from 30 March 2019 if there is no deal’.

The paper outlines the no deal scenario from 30 March 2019, which would occur if the UK and the EU fail to conclude a Withdrawal Agreement before 29 March 2019. If this occurs, the transitional period provided for within the draft Withdrawal Agreement, which would ensure EU free movement law continues until 31 December 2020, would not apply. It is stated in the policy paper that:

“Instead, we will seek to end free movement as soon as possible through the Immigration and Social Security Co-ordination (EU Withdrawal) Bill introduced to Parliament on 20 December. The Bill, once enacted, will repeal the Immigration (European Economic Area) Regulations 2016, which currently implement free movement in UK law.”

Resident EU citizens

The agreement to protect the rights of resident EU citizens has not changed. Deal or no deal, those EU citizens who are resident in the UK prior to 29 March 2019 will continue to benefit from the right to live and work in the UK as they do now through the EU Settlement Scheme. If there is a Withdrawal Agreement the EU Settlement Scheme will apply EU citizens resident in the UK prior to 31 December 2020. If, however, a no deal scenario occurs, it will only apply to those resident in the UK before 29 March 2019 (the terms will also be slightly less favourable, as explained on the Free Movement blog here).

Incoming EU citizens

Those arriving after the end of free movement on 29 March 2019 would, in a no deal scenario, be subject to the UK immigration rules and will thus require permission from the Home Office to enter or remain.

From this date, incoming EU citizens will enter the UK as they do now, and will be permitted to stay for up to three months. Should they wish to remain beyond the three month mark, entrants must make an application to the Home Office and, if successful, will be granted 3 years leave to remain. This application is non-extendable, and EU citizens seeking to remain must apply under the new immigration system expected to be implemented in 2021 before their visa expires. The Home Office have stated that the initial 3 month leave will be free of charge, however the application to extend will not.

This policy appears to fill the lacuna in the law between the proposal to end free movement on 30 March 2019 if there is no deal and the beginning of the new immigration system in 2021, set out in the White Paper published on 19 December 2018.

Irish and EFTA citizens

The Home Office have confirmed that Irish citizens continue to have the right to enter and live in the UK, and the post-March 2019 arrangements outlined in the policy paper also apply to citizens of the EFTA states (Switzerland, Norway, Iceland, and Liechtenstein).

Comment

The policy paper is a welcome clarification of how the UK plan to treat incoming EU citizens in the event of a no deal Brexit. It enables individuals and businesses to make plans beyond March 2019, without having to await the eventual outcome of the Brexit negotiations (or more accurately, given that those negotiations concluded in November 2018, the UK Government’s chaotic attempts to obtain parliamentary approval of the outcome of those negotiations).

However the proposal is not without problems. Operating two different schemes for EU nationals - one for pre-March 2019 entrants and one for post-March 2019 entrants - is bound to cause confusion. How will employers, landlords, banks, and doctors (all of whom must check a person’s immigration status due to the Government’s hostile environment policy) distinguish between a pre-March 2019 EU citizen who is entitled to settled status (but may not have applied yet) and a post-March 2019 EU citizen who is not? What if a pre-March 2019 EU citizen wants to go on holiday? When they return to the UK do they become subject to the post-March 2019 system? If they fail to apply for settled status within 3 months of their return do they become an unlawful migrant? These issues may be ironed out once the legislation required to implement this policy is drafted. However, given the drastic consequences for individuals if they get it wrong (which include losing the right to work, jeopardising your ability to return to the UK, and even criminal liability) there is no room for error. This, unfortunately, is a consequence of moving from an automatic rights based system (EU free movement law) to one which requires an application to be made seeking permission to remain (UK immigration law).

It must be reiterated that this policy only applies in the event of a no deal Brexit. It remains to be seen whether such a scenario will come to pass. We continue to watch with bated breath as the political drama unfolds.

If you are an EU citizen in the UK and would like more information tailored to your situation, we offer consultations and a full application service to provide advice and assistance on the best course of action to take to secure your place in the UK, contact us for expert advice from our immigration solicitors.

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