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BREXIT - Possible Outcomes for Citizens [Updated 11/04/2019]

On 23 June 2016, the UK held a referendum asking voters in England, Scotland, Wales and Northern Ireland if they wanted to remain a member of, or to leave, the EU. 51.89% of UK voters voted to leave the EU.

The UK government triggered the Article 50 process, establishing an exit date of 29 March 2019. On 25 November 2018, the EU and the UK government endorsed a draft Withdrawal Agreement and an outline Political Declaration on the future relationship. However, the agreement was rejected in votes in the UK House of Commons on 15 January 2019 and 12 March 2019.

On 21 March 2019, the Prime Minister and the EU agreed an extension of the Article 50 period, until 22 May 2019 if the withdrawal agreement was approved by Parliament by 29 March 2019 (it was not approved); or until 12 April 2019, by which the UK had to present the EU with a way forward or leave with no deal.

[UPDATE] On 10 April 2019, the EU and the UK agreed a new, flexible extension, until 31 October 2019.

There are still several possible outcomes:

  • The UK and the EU could ratify the Withdrawal Agreement by 31 October 2019. In this case, the UK would leave the EU in an orderly manner on the first day of the month following ratification; or
  • There could be a no-deal Brexit on 1 June 2019 if the UK fails to ratify the Withdrawal Agreement by 22 May 2019 and also fails to properly hold European Parliament elections on 23-26 May 2019; or
  • There could be a no-deal Brexit on 1 November 2019, if the UK fails to ratify the Withdrawal Agreement by 31 October 2019; or
  • The UK government could request another extension of the Article 50 period before 31 October 2019; or
  • The UK government could unilaterally revoke Article 50, effectively cancelling Brexit.

Here we look at possible outcomes for EU citizens and UK nationals, with and without a ratified Withdrawal Agreement.

Brexit with Withdrawal Agreement

If the deal is eventually ratified, free movement will continue until the end of the transition period (31 December 2020 unless extended).

Note that the UK has reached separate agreements with the EEA EFTA states (Iceland, Liechtenstein and Norway), as well as with Switzerland, on protecting citizens' rights after Brexit.

EU Citizens in the UK

  • All EU citizens arriving in the UK before 31 December 2020 will have until 30 June 2021 to register, through the EU Settlement Scheme;
  • Family members in a relationship with the EU citizen before the end of the transition period will be able to join those with settled status at any future date;
  • New immigration rules, applying to EU nationals arriving after transition, should come into effect by January 2021. EEA workers will be treated the same as non-European nationals under the existing points-based system, but with some amendments to the system. The government’s proposal is analysed in detail here.
  • Family members of an EU citizen arriving after 31 December 2020, will be subject to a future immigration scheme.

UK Nationals in the EU

  • The rights of UK nationals resident in the EU before the end of the transition period (31 December 2020, unless extended), and of their family members, will be similarly protected, though registration schemes will vary between members states.

No-Deal Brexit

EU Citizens in the UK

Existing Residents

On 6 December 2018, the government published a policy paper outlining the UK government’s proposals for protecting EU citizens’ rights in case the UK leaves the EU without an agreed and ratified withdrawal deal.

In a no-deal Brexit scenario, with no transition period, the EU Settlement Scheme will still operate but the cut-off dates will be brought forward:

  • Only EU citizens already in the UK by Brexit day will qualify, and they will have to apply by 31 December 2020;
  • Family members in a relationship with the EU citizen before Brexit day will be able to join those with settled status until 29 March 2022.

Other differences in the case of no deal include:

  • The Court of Justice of the EU (CJEU) would not have jurisdiction as regards EU27 citizens in the UK (under the withdrawal agreement it would have residual jurisdiction for eight years after the end of the transition period.
  • EU citizens would have no right to an appeal to an immigration judge.

New Arrivals

On 28 January 2019, the UK Home Office published a policy paper outlining its proposals for how it will treat EU citizens arriving in the UK after a no-deal Brexit.

According to these proposals, subject to parliamentary approval of the necessary legislation in the event that the UK leaves the EU without a ratified withdrawal agreement, temporary, transitional arrangements will apply from Brexit day until 31 December 2020, after which a new immigration regime will be implemented. This means the UK would unilaterally grant EU citizens arriving after Brexit largely the same rights as entrants before Brexit, until the new immigration rules take effect, including the right to enter, stay, work and study, bring family and access benefits, only not backed by the legal authority of the European Court of Justice.

However, as the EU Settlement Scheme would not apply to new arrivals (in a no-deal scenario), their long-term rights would depend on a further unilateral offer from the UK, bilateral agreements with individual member states or a future relationship agreement with the EU.

See our analysis of these no-deal temporary transitional arrangements.

UK Nationals in the EU

If the UK leaves the EU without a ratified withdrawal agreement, then UK nationals will become third-country (non-EU) nationals immediately:

  • UK nationals wishing to visit the EU for up to 90 days will likely be able to do so without a visa, provided that the UK reciprocates for EU nationals (subject to the necessary legislation).
  • Falling under the visa-free regime means UK nationals will need to apply for ETIAS travel authorisation prior to a trip to the EU, after 1 January 2021.
  • UK nationals wishing to enter an EU member state for stays of more than 90 days will require a visa.
  • UK nationals wishing to enter an EU member state for work will need to apply for work authorisation, like other third-country nationals. They may qualify for short-term work permit exemptions where available.
  • UK nationals already resident in an EU member state by Brexit day will likely be able to stay and continue to work if they register in time, although this will depend on unilateral arrangements made by individual member states, which in turn may depend on a reciprocal offer by the UK.
  • UK nationals travelling to the Schengen area (not Ireland, Bulgaria, Croatia, Cyprus or Romania) will have to have at least six months left on their passports from the date of arrival. This applies to adult and child passports.
  • Any extra months over ten years on a passport (if it was renewed before expiry) may not count towards the six months that should be remaining for travel to Schengen countries.

EU member states are in the process of establishing emergency arrangements for British citizens in the case of a no-deal Brexit, often with the proviso that a reciprocal offer by the UK is confirmed. Please see our separate article highlighting these national measures here.

Action Items

  • To avoid problems in a no-deal Brexit scenario, ensure all UK employees residing in an EU member state, and EU citizens resident in the UK, and their family members, have submitted registration applications (where applicable) by Brexit day;
  • Affected employees should begin gathering documents in support of possible future immigration applications. These documents may include copies of passport data pages, marriage and birth certificates for accompanying family members, employment contracts or assignment letters, CV/resume, current job description, educational certificates, police clearance certificates, rental contract, proof of health insurance and payslips;
  • If possible, bring forward any planned movements of UK nationals to the EU and EU citizens to the UK;
  • Be prepared for possible lengthy immigration application requirements in any eventual no-deal outcome;
  • Contact a Newland Chase immigration specialist for case-specific advice.

This alert was prepared with information provided by Newland Chase and partners.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2019 Peregrine Immigration Management Ltd.