Brexit – implications on the rights of EU nationals in the UK

Currently there is a freedom of movement of people within the EU, which allows EU nationals to move within the EU including the UK, for work, to run a business, to study or to live as a self-sufficient person.

Following the two-year negotiation period triggered in 2017, Britain is due to leave the EU on 29th March 2019. If Brexit deal is agreed there will be a two year transition during which the free movement rights for EU nationals will continue. On 31st December 2020 the free movement would end and EU nationals arriving from 1st January 2021 would be subject to the new immigration regime. Before the end of the transition period EU nationals would need to register under the EU Settlement Scheme to be able to stay in the UK after the end of the transition. The deadline to apply for the Settlement scheme would be 30th June 2021. The EU Settlement Scheme is due to be fully open for applications on 30th March 2019. The UK Home Office announced that the applications will be free of charge.

If there is no Brexit deal agreed, the recently published Home Office guidance explains the position of EU nationals as follows:

  • The guarantee to remain in the UK after Brexit would only apply to EU citizens who are resident in the UK by 29 March 2019.
  • EU citizens and their family members resident in the UK by 29 March 2019 would have until 31 December 2020 to apply for a status under the EU Settlement Scheme. The new UK immigration system would be implemented from 1 January 2021 as planned.
  • EU citizens would have the right to challenge a refusal of UK immigration status under the EU Settlement Scheme by way of administrative review and judicial review, in line with the remedies generally available to non-EEA nationals refused leave to remain in the UK. There would be no preliminary reference procedure to the Court of Justice of the European Union, as it would not have any jurisdiction in the UK.
  • The EU deportation threshold would continue to apply to crimes committed before exit. However, the Home Office would apply the UK deportation threshold to crimes committed after 29 March 2019.

EU Settlement Scheme  

The EU Settlement Scheme is due to open to EU nationals and their family members from 30th March 2019. The application process will be digital and free of charge. If Brexit deal is agreed it will be mandatory to register under the scheme by June 2021, and in case of no deal the registration deadline will be 31st December 2020. EU citizens and family members who have resided continuously in the UK for 5 years will receive a permanent residence (settled status) and those who have less than 5 years residence will be granted leave to remain (pre-settled status) allowing them to complete 5 years in the UK to qualify for permanent residence. The status will be evidenced only digitally as there will be no physical document issued.

What steps EU nationals can take at present

Those EU nationals and family members who have 5 years or more residence in the UK should consider applying for Permanent Residence (PR) under the current free movement law and those already holding PR should consider applying for UK citizenship. The PR holders do not need to wait for 1 year to apply for UK citizenship if their permanent residence status was acquired at least 1 year before citizenship application. Those who do not qualify for PR or UK citizenship should prepare for registering under the EU Settlement Scheme as soon as it is open. The registration would be particularly important in case of no deal Brexit as it will evidence residence in the UK before 30th March 2019.

Kasia Janucik (Senior Associate, Carter Lemon Camerons Solicitors), 20 February 2019 

Contact our lawyers in Carter Lemon Camerons Solicitors for advice on immigration matters. The specialist team at Carter Lemon Camerons Solicitors can assist you with all immigration and business-related matters. Our years of expertise in these areas mean that we can provide tailored solutions for you. For more details, please contact Kasia Janucik, Senior Associate and Aleksandra Kowalska, Registered European Lawyer in our immigration department  at Carter Lemon Camerons or call us on +44 (0) 20 7406 1018.