Home Office releases policy paper on Citizens’ Rights

Kelly Whiter, Partner, Fladgate LLP (kwhiter@fladgate.com)

On Thursday 6 December 2018 a policy paper was released by the Home Office providing further information regarding citizens’ rights post-Brexit, with specific detail given regarding the position in the event of a no-deal scenario.

In the event of a deal scenario, under the terms of the draft Withdrawal Agreement, free movement effectively continues until 31 December 2020 and those EU nationals residing in the UK by this date will be entitled to remain thereafter and eventually settle in the UK, providing they make an application under the EU Settlement Scheme by 30 June 2021. Family members of EU nationals are also able to apply under the EU Settlement Scheme, even at a later date, provided that the relationship with the relevant EU national existed on 31 December 2020.

So how does this change in a no-deal scenario? The UK Government has given repeated assurances that the rights of those EU nationals already in the UK by 29 March 2019 would be protected even in a no-deal scenario. Whilst this remains the case, the new policy paper makes it clear that the provisions will not be as generous in such circumstances. The main changes are:

1. The EU Settlement Scheme will apply only to those EU nationals resident in the UK by 29 March 2019
2. Applicants would only have until 31 December 2020 in which to make an application under the EU Settlement Scheme, losing the 6 month grace period to 30 June 2021 set out in the Withdrawal Agreement
3. EU nationals would only have the right to challenge a refusal by way of Administrative Review and Judicial Review, losing the full appeals process set out in the Withdrawal Agreement
4. The UK deportation threshold would be applied to crimes committed after 29 March 2019
5. EU nationals with settled status will be able to be joined in the UK by close family members only until 29 March 2022, whereas there was no time limit provided under the Withdrawal Agreement, and the relationship must have existed on 29 March 2019, as opposed to 31 December 2020 under the Withdrawal Agreement
6. EU nationals with settled status will only be able to be joined in the UK by future spouses and partners (where the relationship was established after exit) until 31 December 2020

One welcomed clarification for EU nationals and employers is that they can rely on EU passports and national identity cards until 31 December 2020 as evidence of an EU nationals right to reside or work in the UK.

The notable absence from the policy paper is what the position will be for EU nationals arriving after 29 March 2019 in a no-deal scenario. The policy paper makes is clear that they will not be eligible to apply under the EU Settlement Scheme in its current format, but likewise the new immigration system will not come into force until 1 January 2021, which would in effect leave those individuals in limbo. I do not believe such a situation would be allowed to happen and it is hoped transitional arrangements would therefore be put in place in those circumstances.

In light of the uncertainty that still remains, for those EU nationals who are planning to relocate to UK, it would be advisable to consider bringing forward those plans, where possible, in order to be residing in the UK before 29 March 2019 and obtain protection under the arrangements referred to above.