It is currently impossible to get through even one day without hearing of the latest developments in the ongoing Brexit fiasco. This is something that has caused deep divisions in this country. Many support leaving the EU with or without a deal, and equally as many want the UK to stay in the EU. The last week saw a landmark judgment in the Supreme Court which goes to the very heart of this country’s constitutional arrangement. At the core of this is the current government’s thinly veiled desire to leave the EU without a deal, by “any means necessary”.
This, and the surrounding rhetoric from politicians and certain segments of the media, has caused EEA citizens living in this country (many have been living in the UK for decades) to become understandably anxious about their future in the UK. The backdrop to this is the fear of another Windrush type scandal.
Therefore, this is a good time to set out, as comprehensively as possible, the particulars of the rights of EEA citizens and their family members to reside in the UK after exit day, in the event of a no deal scenario. It should be noted that some aspects of this matter, such as the long term picture for EEA citizens, and their family members, looking to come and live in the UK after exit day, have not yet fully resolved. Therefore, some of the below could be subject to change as the political and legal landscape develops.
Resident before exit day – UK Immigration Law And Brexit
In summary, EEA citizens and their family members who are resident in the UK before exit day are, for the most part, secure in the UK:
Currently, the rights of EEA citizens and their family members to live and work in the UK are provided for in EU law (The Citizens’ Directive), given domestic effect by the Immigration (European Economic Area) Regulations 2016 (The 2016 Regulations). These regulations will continue after exit day, meaning that EEA citizens will continue to be entitled to come to the UK in exercise of their rights of free movement under EU law.
The government intends to pass legislation revoking the 2016 regulations as soon as possible after exit day. Once this new legislation is passed, rights of free movement under EU law will no longer apply in the UK. It is not clear when is legislation will be passed, but we can assume it will be a matter of days or weeks (possibly months, but most probably not years) after exit day. Therefore, it would be sensible to not rely on a continuing right of free movement after exit day.
EEA citizens and their family members resident in the UK will be entitled to apply for either indefinite leave to remain (settled status – if they have lived in the Uk for 5 years or more) or limited leave to remain (pre-settled status – if they can show that they have been resident in the UK for at least one day in the 6 months before they apply). In the event of a no deal exit, they will be entitled to apply until 31st December 2020. In the event of exit with a deal, the time to apply will extend to 30th June 2021. If no applications are made before these deadlines, EEA citizens and their family members will not be able to benefit from the settlement scheme.
EEA citizens in the UK after exit day who have not applied under the settlement scheme will continue to have the right to live and work in the UK up until 1st January 2021. However, it is unclear how issues such as proving the right to work and rent will be addressed, and there could be practical problems facing EEA citizens and their family members if they have not applied under the settlement scheme.
If an EEA citizen was living in the UK before exit day, but their family members were abroad before exit day, the family member will be entitled to apply to join the EEA citizen in the UK until 29th March 2022. However, and with the exception of children born after exit day (who will be allowed to apply to join the EEA citizen), the family relationship must have existed on exit day. This means, for example, that spouses who marry the EEA citizen after exit day will not be entitled to come to the UK under the settlement scheme.
Outside the UK on exit day – Immigration Law UK And Brexit
Save for those EEA citizens who were in the UK prior to exit day but were outside the UK on exit day, and meet the residence requirements for leave under the settlement scheme, and save for family members outside the UK on exit day where the EEA citizen is in the UK before exit day, the settlement scheme will not apply to people outside the UK on exit day, if the UK leaves the EU without a deal. If the UK leaves the EU with a deal, EEA citizens and their family members will be entitled to come to the UK and obtain residence under the settlement scheme until 31st December 2020.
As stated above, free movement rights under EU law will continue to entitle EEA citizens and their family members to enter, live and work in the UK after exit day, until the legislation revoking the 2016 regulations is passed. At that point, a new (and temporary) scheme will come into effect.
EEA citizens will be entitled to enter the UK upon production of their EU passport at the port of entry. They will be granted 3 months leave to enter the UK, and will have the right to work, study, rent and access healthcare.
If the EEA citizen wishes to remain in the UK beyond the initial three month period, they will be entitled to apply for a form of leave to remain called “European Temporary Leave to Remain”, which will be issued for 3 years. During these three years, the EEA citizen will be entitled to work, study, rent and access healthcare. This European Temporary leave will not be extendable beyond the three years. Furthermore, the draft legislation which provides for this for of leave is completely silent on family members.
After the three years have passed, or on 1st January 2021 (if the EEA citizen has not entered the UK or benefitted from this scheme), EEA citizens will be subject to new laws governing their right to live in the UK. As things currently stand, we do not know what these new laws will provide for, as there is currently nothing in draft. We expect that, in the event of a no deal exit, the government will publish a bill setting these new laws out relatively quickly.
As will be clear from the above, EEA citizens have good reason to be anxious about their future in the UK. If they do not apply under the settlement scheme in time, their right to reside in the UK in the future is unclear, and there is a significant risk of a further Windrush type scandal emerging. Furthermore, EEA citizens looking to come to the UK in the future may not be able to remain in the UK permanently, as we do not yet know what rules will apply to them in the long term.
We can assist with any applications made under the settlement scheme, or under the new provisions if and when they come into force.
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