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All to Play For: EU Citizens’ Rights After Brexit

11pm on 29 March 2019 was supposed to herald a new dawn for the rights of EU citizens in the UK. A deal would have introduced a relatively more liberal era, whilst no-deal threatened a far harsher outcome.

The Government’s preferred choice under the Withdrawal Agreement was a ‘transition period’ which preserved free movement for a further 21 months.

The alternative was that we would crash out of the EU with the Government’s hastily assembled no deal planning papers on immigration kicking-in; thereby abruptly bringing free movement to a halt.

Integral to both scenarios was the EU Settlement Scheme – the mandatory system of registration for all EU nationals and their family members.

Under a deal there would have been extended access to the Scheme. However in the case of no-deal, access would be limited to those who arrived by ‘exit day’.

In the end neither option materialised because the EU agreed to the UK’s request to ‘kick the can down the road’ until 31 October 2019. This is now the new deadline by which the Withdrawal Agreement must be ratified.

However we are now in an odd position whereby, although we neither entered the transition period nor crashed out of the EU, the EU Settlement Scheme opened to the public on 29 March 2019. Uptake has been quick and over 750,000 EU citizens and their family members have now registered on the Scheme.

Looking forwards though, we can now discern two distinct immigration policies which could come into force on 31 October depending on whether there is a deal or no-deal. 

But first…what is the EU Settlement Scheme?

The EU Settlement Scheme is a registration system for all EU nationals and their family members who want to reside in the UK. Applications are free of charge and the process is ‘light touch’ and can be done through an Android App. Applications are generally decided within two weeks.

Those living in the UK for five continuous years prior to the relevant cut-off point will normally be eligible for settled status, which in this context means Indefinite Leave to Remain.

Those with fewer than five years’ residence will be granted Pre-Settled Status. This grants the individual permission to reside in the UK for five years and the individual can apply for Settled Status once five years’ residence is attained.

What happens if a deal goes through?

If the Withdrawal Agreement is ratified then the cut-off date, by which EU nationals and their family members must enter the UK to be eligible for the Scheme, is 31 December 2020.

This would mean that free movement would carry on until this date. Under the Agreement there is also a wider window to register on the Scheme, with a deadline of 30 June 2021.

What happens if we leave with no-deal?

If we leave without a deal then the Scheme will have less generous cut-off dates. Crucially, under a no-deal, the deadline by which EU nationals and their family members must enter the UK to be eligible for the Scheme is the date we exit the EU.

This would mean that if we left the UK on 31 October 2019 then EU arrivals after this date will not generally be eligible for the Scheme (although anyone who has lived in the UK for five continuous years previously, might be eligible for Settled Status).

Also, in a no-deal scenario, the deadline to register on the Scheme is brought forward to 31 December 2020 (from 30 June 2021 under the Withdrawal Agreement).

Whilst free movement in a no-deal scenario would cease from ‘exit day’, EU nationals and their family members arriving after this date and wishing to stay in the UK beyond three months could apply for a Visa called European Temporary Leave to Remain (ETLR)This Visa would be available up until 31 December 2020.

ETLR is a far weaker form of immigration status compared to Settled Status. ETLR gives EU nationals, and their family members, temporary permission to stay in the UK for a period of 36 months. This is non-extendable and doesn’t lead to Indefinite Leave to Remain.

Prior to the expiry of the 36 months, individuals will therefore have to find some other immigration category to switch into, or leave the UK. Those individuals that stay in the UK beyond the expiry of their leave will be ‘overstaying’ and committing a criminal offence.

All to play for

Readers can be forgiven for switching off from all things Brexit. However in terms of the UK’s future immigration policy, the differences between a deal and no-deal are huge. There is a big difference between being granted a temporary Visa for 36 months and having a right to live in the UK indefinitely.

So unless the UK decides not to leave the EU, one of these outcomes will eventually prevail.

 

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Louis MacWilliam

Associate and Head of Immigration
Business Immigration
LMacWilliam@LawBlacks.com
0113 322 2842
@LouisLawBlacks
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Louis MacWilliam Blacks Solicitors LLP