Personal Immigration

Brexit: No deal and Citizens’ rights

On 06 December, the UK government published a policy paper on what will happen to EU citizens in the UK, and UK citizens in the EU, in the event of a ‘no deal’ Brexit outcome. With the vote on the withdrawal agreement delayed in Parliament, time is running out before 29 March 2019 and the possibility of there being a no-deal default is becoming more realistic.  

EU citizens in the UK by 29 March 2019

The settled status scheme – Appendix EU – would apply in a similar way in the event of a no-deal Brexit.  However, the key date has changed: no longer will there be a transitional period until 31 December 2020 in which EU law and the new scheme co-exist.   Instead, Appendix EU will apply from Brexit Day until 31 December 2020.

The starting point is that the ‘settled status’ scheme for EU27 citizens in the UK would work in the same way as under the withdrawal agreement, including a five year period to leave and then return without losing settled status. However, the UK government would be able to change the requirements at a later date as there is nothing to hold them to the current formulation, it not being guaranteed by international law.  

However, there are some differences with the planned settled status scheme under the Withdrawal Agreement. Without the transition period until the end of 2020, being in the UK on Brexit Day – 29 March 2019 is necessary to fall under the scope of this scheme.  EU nationals and their family members arriving after this date would not be able to rely on the scheme. Instead, they would have to make applications under domestic law as applicable to all other individuals.

The deadline for registration for settled status would end sooner than the proposed 30 June 2021 under the Withdrawal Agreement.  With no deal, this is set to end at the end of 2020. The new UK immigration system would be implemented from 1 January 2021.

Proposed remedies are limited – Administrative Review and Judicial Review as opposed to substantive appeal as those challenging EEA decisions currently enjoy.

The lower threshold for expulsion under UK law would apply for crimes committed after Brexit Day, rather than crimes committed after the end of the transition period.  

UK citizens in the rest of the EU

As it admits, the UK government cannot alter the position of UK citizens in the EU27.  It hopes for reciprocity but cannot guarantee this.

EFTA States

Even if there’s no deal with the EU, the UK would still seek a deal with EFTA States (Norway, Iceland, Switzerland and Liechtenstein), and expects that EFTA nationals can stay, and UK citizens in those states can stay there.  

Comment

Under a no deal Brexit, obviously EEA nationals’ rights will be adversely affected when compared with their current rights and entitlements under the Withdrawal Agreement.  The scheme in the Policy Paper seems generally quite sensible (or at least predictable), but is largely worthless, as it could be replaced with something far more strict with very little effort by the government.

The best course of action remains, for those able to, to make applications prior to Brexit to reduce potential ramifications as far as possible.

Contact our EEA Immigration Lawyers

For expert advice regarding a residence application as an EEA national or family member of an EEA national, contact our EEA immigration barristers & lawyers on 0203 617 9173 or complete our enquiry form below.

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