Free movement comes to an end at 11pm on the 31st December 2020. EU nationals living in the UK should hopefully by now have applied for pre-settled or settled status confirming their right to continue to live in the UK after 2020, under the EU Settlement Scheme (‘EUSS’). If not, the deadline is the 30th June 2021 to apply, referred to as the Grace Period.
However, this is not as generous as it may appear at first blush and as ever, the devil is in the detail.
Although applications can be made for one or either status depending on circumstances during the so-called Grace Period, not everyone who does so will be afforded the usual protection and assurance expected as an EU national.
The recently published Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (“Regulations 2020”) confirm that protection will only be available if the “Relevant Person” definition is met, which requires “ lawful residence” before 31 December 2020 under the EEA Regulations 2016. This means that a person must have been exercising “Treaty Rights “ as an EEA national within three months of entering the UK, and which must have commenced before 31 December 2020 as affirmed in the explanatory note to the Regulations :
Certain provisions of the EEA Regulations 2016 will continue to apply during the grace period to individuals who do not have leave to enter or remain in the United Kingdom under residence scheme immigration rules and who —
(a)resided lawfully in the United Kingdom by virtue of those regulations immediately before IP completion day (see section 39 of the Act),
(b)had a right of permanent residence in the United Kingdom by virtue of those regulations at any point in the 5 years preceding that date, or
(c)are family members of such persons
So much has changed since we first embarked on the road to Brexit but exercising Treaty Rights has remained constant in that a person must fall into one of the 5 categories ie: worker, jobseeker, self-employed person, self-sufficient person, or student.
Although the Withdrawal Agreement was understood to protect all EU nationals (and their family members) residing in the UK before 31 December 2020, the Regulations 2020, as drafted, provide no protection for those who have not been granted leave under the EUSS by 31 December 2020 and were not lawfully resident.
This is particularly concerning during this time of the pandemic where EU nationals will not be able to vouch their legal status until an application under the EUSS is granted, which could prevent employment, housing and access to the NHS.
The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (“Regulations 2020”) are due to come into force on IP completion day, defined in section 39 of the European Union (Withdrawal Agreement) Act 2020 as 31st December 2020 at 11pm.
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