As the UK hurtles ever closer to a possible cliff edge and the spectre of ‘no deal’ Brexit looms large in everyone’s minds, it is easy to feel we have no control over the direction we are heading in and the impact that may have on our lives.
Those individuals who have obtained the right to live in the UK by virtue of their EU citizenship or their family relationship to an EU citizen can, however, take back control over their immigration status and rest a little easier in the weeks to come about at least one aspect of this quagmire.
This is true of both EU citizens already resident in the UK and those who have been considering a move.
What if I am already in the UK?
The British Government has introduced the EU Settlement Scheme to enable EU Citizens to obtain a status which will exist under UK law once we have left the EU. It is split into settled status, broadly equivalent to indefinite leave to remain or permanent residence, for those who have resided in the UK for five years and pre settled status for those who have not yet completed five years of residence to enable them to reach that point.
If you are an EU citizen with a valid EU passport or the family member of an EU citizen and you have a biometric residence card, you can now submit a digital application to apply for this immigration status. The application is open to any dual US/EU citizen living in the UK in any capacity. If you have not yet resided in the UK for five years, you will be granted pre-settled status for up to five years. After you have resided in the UK for five years, you will be eligible to apply for settled status, subject to meeting the absence requirements, criminal and security checks. If you have already resided in the UK for at least five years, then you can apply under the scheme for settled status immediately.
It is also worth considering applying for a document confirming your right of residence in the UK under EU law. If you are an EEA national and have completed a continuous period of five years in the UK as someone who is employed, self-employed, studying or self-sufficient you can apply for a document certifying permanent residence. The date on which you completed the five-year period doesn't matter as long as you have not been outside the UK for a continuous period of more than two years after completing the five-year period.
The most immediate reasons why you might want to get a permanent residence document are as follows –
First, if you want to become a British citizen you must have either a permanent residence document or settled status. If you are granted settled status you then have to wait another year before you can apply for British citizenship (unless you are married to a British citizen) but if you have a permanent residence document you can effectively get it backdated to the date when you completed the five-year qualifying period. Becoming a British citizen will give you ultimate control over your immigration status as you will no longer need to worry about immigration (and will give you more control over the future of the UK by giving you a vote in future elections and referendums!).
Second, if have a child who was born in the UK after you completed the five-year qualifying period you could potentially rely on a backdated permanent residence document to get a British passport for your child. Different rules apply here depending on the child’s date of birth so it is important to get advice on this as soon as possible to ensure your child’s status is clear and secure.
Unfortunately, not everyone who has lived in the UK for five years qualifies for a permanent residence document – especially students and self-sufficient people who don’t have private health insurance.
Deal or no deal?
If the UK and the EU ratify the Withdrawal agreement, there will be a transition period until 31 December 2020 during which EU law will continue to apply in the UK. Under this agreement, EU Citizens arriving by 31 December 2020 will be able to apply for pre-settled or settled status by 30 June 2021.
If we leave the EU on 29 March 2019 without a deal, there will be no EU wide implementation period but in their planning the UK has indicated a unilateral implementation period until 31 December 2020 to allow EU citizens time to apply for the necessary status.
On 6 December 2018, the Government published a policy paper confirming the EU Settlement Scheme will be fully implemented even in the event of a no deal Brexit but EU Citizens will need to have been living in the UK by 29 March 2019 to qualify and any applications will need to be submitted by 31 December 2020.
What if I am planning to travel to the UK after 29 March 2019?
As mentioned above, in the event of a deal, EU citizens and their family members will be able to freely travel to the UK until 31 December 2020 and will still be able to secure settled status after five years.
However in a no deal scenario, the long term position is less clear.
Without a withdrawal agreement, free movement will end on 29 March 2019. As part of the unilateral transition period the UK has agreed to implement, EEA nationals arriving between 30 March 2019 and 31 December 2020 will be subject to the following –
- They will be admitted to the UK for three months with permission to work or study;
- If they wish to stay for longer than three months, they must apply for a new status called European Temporary Leave to Remain. This will be valid for 36 months;
- After 36 months, they will need to apply for further leave to remain under the new immigration system which we expect to be in place from 1 January 2021;
- If they cannot qualify for leave to remain under this new system, they will need to leave the UK.
If an EEA national has a non-EEA spouse or partner and dependant children under 18, they will be able to bring them to the UK under this scheme but they will need to apply in advance for a family permit.
As the position is so uncertain in a no deal Brexit, those considering relocating to the UK on the basis of EU citizenship, may wish to consider the timing of their relocation. If it is possible to establish yourself in the UK by 29 March 2019, this is likely to give you a lot more certainty and security going forward.
That’s a lot to take in!
It certainly is and after almost three years of uncertainty, it is completely understandable that EU citizens and their family members have lost trust in the UK immigration system to offer them the security they previously felt. However, with the fate of Brexit less clear than ever, it is important that those in the UK on the basis of EU law ensure they at least have clarity about their own status and, where possible, take the steps they can to protect themselves going forward.
This blog was first published in The American magazine, March/April 2019 edition.
For further information on the issues raised in this blog post, please contact a member of our immigration team.
About the authors
Katie Newbury is a senior associate in the immigration team where she advises a broad range of clients. She has experience across a wide spectrum of UK immigration matters, with particular expertise in applications made under Tier 1 of the Points Based System and complex personal immigration matters.
Kim Vowden is a senior associate in the immigration team. He covers all areas of business immigration. He has extensive experience of advising companies in the finance, media and technology sectors. He has a particular interest in European free movement law and in the implications of Brexit for EU citizens living in the UK, and for their employers.
Katie Newbury (she/her)
Latest blogs & news
On 16 November the CJEU delivered its judgment following the publication of the Advocate General’s opinion on the UK-Ireland extradition questions which we wrote about here. The decision concerned the mechanisms for extradition to the UK from Ireland in two scenarios (1) under the terms of the withdrawal agreement from 1 February to 31 December 2020 and (2) under the EU-UK Trade and Cooperation Agreement (“TCA”) from 1 January 2021.
The judgment confirms the AG’s Opinion that Ireland is bound by the withdrawal agreement and the TCA (“the agreements”) in respect of extradition arrangements with the UK and accordingly extradition from Ireland to the UK post-Brexit will continue under those terms.
On 9 November 2021 Advocate General Kokott handed down her opinion in respect of Case C-479/21 concerning Mr Sn and Mr Sd following a reference from the Irish Supreme Court which was made on 3 August 2021. Her opinion stated that the provisions of the Withdrawal Agreement and TCA which ensure the continuation of the European arrest warrant regime in respect of warrants issued by the United Kingdom (“UK”) during the transition period are binding on Ireland.
Having our cake and eating it: Parliamentary sovereignty in light of Brexit and the Covid-19 pandemic
One of the key themes of the Brexit campaign was for the UK to retain Parliamentary sovereignty, or “Take Back Control.” This blog focuses on that aspect of Brexit and revisits previous discussions around delegated legislation and Parliamentary sovereignty to assess the effect of the past 9 months on our Parliament.
Rebecca Niblock and Edward Grange examine the key changes & similarities to extradition law following Brexit. The introduction of new surrender arrangements under the EU-UK Trade and Cooperation Agreement. Changes effected under the Extradition (Provisional Arrest) Act 2020.
The Master of the Rolls, Sir Geoffrey Vos, has approved the new guideline hourly rates (GHR) proposed by the CJC and the Stewart committee which will come into effect on 1st October 2021.
These new rates are a result of the final report of the Civil Justice Council released at the end of July 2021 and the forerunning consultation that took place between 8 January and 31 March 2021.
From being the centrepiece of England’s post-Covid recovery with ‘eat out to help out’, the hospitality sector is now struggling to rebuild after lockdowns, furlough and rising food prices. At the same time many restaurants, cafes and pubs are coming up against the hard realities of a post-Brexit immigration policy and discovering what it means for their business.
Perhaps the first practical negative consequence for the UK to emerge “Beyond Brexit” from an extradition perspective relates to Article 83 of the TCA which allows EU Member States to refuse to extradite their own nationals to the UK. Germany, Austria and Slovenia had already exercised the Nationality bar during the transition period, which ended on 31 December 2020.
The potential fallout from Brexit for extradition and cross-border criminal justice security had been forewarned even before the first vote was cast in the Referendum. The risks to the UK of losing access to SIS II and complicating a relatively simple (albeit not perfect) EAW process were highlighted by many practitioners, law enforcement agencies and politicians.
Deal or no deal, when the UK’s transition agreement expires at 11pm on 31 December 2020 the country will no longer participate in EU sanctions arrangements or otherwise give effect to EU sanctions regimes. Instead, it will operate a two tier system, devising its own sanctions policies and measures which will be supplemented by sanctions measures imposed as a result of United Nations Security Council Resolutions.
Would the Constitution survive a No-Deal Brexit? The Internal Market Bill and its legal controversies
The Internal Market Bill (the “Bill”) has caused a dramatic fallout at home and abroad. It has faced massive defeats in the House of Lords over the month on November. It was the reported reason behind the UK’s most senior legal civil servant announcing his departure from the Government Legal Service.
As the end of the Brexit transition period draws near, complexities associated with navigating cross-border regulatory regimes have been increasingly brought to the fore. The Law Society of Ireland’s announcement last week, confirming a ‘physical presence’ requirement for solicitors intending to practise in Ireland, has highlighted wider post-Brexit issues surrounding residency requirements and recognition of qualifications for regulated professionals on the British/Irish border.
Claiming for maintenance in England when divorcing elsewhere in the EU: Will Brexit close the Villiers loophole?
The Supreme Court recently made clear in Villiers v Villiers  UKSC 30 that divorcing in one EU country does not prevent a party from making a separate claim for maintenance from their spouse in England and Wales. The case therefore demonstrates the possibility of ‘forum shopping’, where a party seeks to bring a financial claim in a jurisdiction (country) that is more convenient or provides a more generous maintenance provision than the jurisdiction in which the divorce is taking place. However, the loophole relies on an application of the EU Maintenance Regulation which will cease to be in force in the UK on 31 December 2020. This blog considers the case of Villiers and how Brexit will affect the current position.
Brexit and family law – what will happen to divorce, financial proceedings, prenups and cases involving children?
At the time of writing, the UK is on the cusp of a General Election where Brexit is high on the agenda. In this blog, Stacey Nevin considers a number of scenarios and the changes that people who have connections with England and another EU member state might encounter for divorces, financial proceedings and matters concerning children in the event of a no deal Brexit.
At the time of writing, it is possible that the UK could exit the EU on 31 October 2019 (“exit date”) without a deal which means immediately leaving EU institutions such as the European Court of Justice without an agreement over what happens next.
Enemies of the constitution? The words of those attacking independent judges are corrosive and wrong
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Tucked in between the “reasonable worst-case” scenarios for food, trade and fuel is a stark one liner: “Law enforcement and information sharing between U.K. and EU will be disrupted”. The reduction in capability of law enforcement agencies that will come from a no deal will, according to government documents, be accompanied by an increase in cross-border crime.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Katie Newbury discusses the implications of a no-deal Brexit on free movement and the impact on Europeans living in the UK.
The suspension of parliament yesterday, at time of political crisis, is now the subject of intense legal scrutiny across the United Kingdom. Lawyers for Gina Miller have lodged an application for judicial review, and are expected to argue that Boris Johnson’s advice to the Queen is an improper use of power, designed to curtail the legislature, resulting in infringement of the constitutional bedrock of parliamentary sovereignty.