Brexit – the “no deal” scenario
10 December 2018
On 5th December 2018, the UK Government published its latest policy paper setting out what rights EU citizens will have to reside in the UK in the event the UK exits the European Union without a deal in place.
Until now the message to EU citizens wishing to live in the UK has been a positive one, reassuring them that their right to do so would remain largely unchanged by the existence or absence of a deal. However, in a move that will alarm many, the paper sets out a much tougher and restrictive approach than that which has been previously communicated by the UK Government.
The position if a deal is agreed
Under the draft Withdrawal Agreement, the EU settlement scheme would allow EU citizens who arrived in the UK prior to 29 March 2019 to remain in the UK and apply for pre-settled or settled status, securing their status in UK law. This agreement also covers the period immediately after the UK leaves the EU, known as the implementation period, which would run from 30 March 2019 to 31 December 2020. Therefore EU citizens and their family members arriving in the UK before 31 December 2020 would also be able to apply for pre-settled and then settled status. Individuals would have until 30 June 2021, six months after the implementation period ends (known as a “grace period”), to make their application.
The position if there is no deal
The UK Government has now advised that in the absence of a deal only EU nationals resident in the UK by 29 March 2019 will be able to stay in the UK. As there would be no agreed implementation period, there would be no opportunity for EU nationals arriving after this date to obtain settled status. This new announcement so close to the exit date puts an unexpected pressure on EU nationals looking to come to the UK to make arrangements to do so within the next three months before this right is lost. Similarly, UK employers looking to hire an EU national who is not yet residing in the UK will only have three months to do so and will need to ensure the employee arrives in the UK before the cut-off date.
In a ‘no deal’ scenario, EU nationals resident in the UK before 29 March 2019 would have until 31 December 2020 to make their application for pre-settled or settled status. Unlike above, there will be no six month grace period beyond this.
Family members of EU nationals resident in the UK before 29 March 2019 will have until 29 March 2022 to join them in the UK, provided the relationship existed on 29 March 2019 or in the case of a child, they are born overseas after this date.
The UK Government re-iterated its intention to ensure that so called ‘frontier workers’ will be able to continue their working pattern of being resident on the continent and coming to the UK to work for short periods. They have not provided information about what this protection would be but that a separate immigration status for them would be created.
The paper does not set out how, if at all, EU nationals will be able to come to the UK to reside after 29 March 2019.
It also remains to be seen what rights UK nationals residing in the EU will have in the event of a no deal. The UK Government cannot act unilaterally to protect the rights of UK nationals residing in the EU and therefore cannot guarantee that UK nationals will be able to stay in or access services in the Member States that they live in after the UK leaves. The UK Government has called on Member States to provide a commitment to protect these rights and to provide details of how they would do so.
The policy paper also states that the UK Government is actively seeking citizen’s rights agreements with the EFTA states (Iceland, Liechtenstein, Norway and Switzerland) to protect the rights of citizens. It has been confirmed that in any scenario, including in the absence of a deal, EFTA nationals will be able to stay in the UK post exit and UK nationals living in EFTA states will also be able to stay.
The UK left the EU at 11pm (UK time) on 31 January 2020, and the transition period came to an end on 31 December 2020. The Trade and Cooperation Agreement reached on Christmas Eve 2020 sets out the shape of the ongoing future relationship between the UK and the EU and provides some degree of certainty for UK businesses.