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BREXIT - Possible Outcomes for Citizens [Updated 22/3/2019]

On 15 January 2019, and again on 12 March 2019, the UK House of Commons voted overwhelmingly against the Withdrawal Agreement negotiated between the UK government and the EU.

On 21 March 2019, the EU Council granted the UK an extension of the Article 50 period to 22 May 2019, to allow necessary withdrawal legislation to pass, if the Withdrawal Agreement is approved by the House of Commons at a third attempt in the week beginning 25 March 2019.

If the deal is again rejected in that week, Article 50 will be extended to 12 April 2019.

There are still several possible outcomes:

  • The deal might be approved in the week beginning 25 March 2019, so that an orderly Brexit can occur on 22 May 2019, before the scheduled European Parliament elections.
  • The deal might not pass parliament (again). In this case:
    • there could be a no-deal Brexit on 12 April 2019; or
    • the UK government could ask for a longer extension of the Article 50 period in order to organise a general election or a ratifying referendum; or
    • the UK government could unilaterally revoke article 50, effectively cancelling Brexit.

If the UK leaves the EU on 12 April 2019 (or later) without a ratified withdrawal agreement, then UK nationals will become third-country (non-EU) nationals immediately.

Here we look at possible outcomes for EU and British citizens, with and without a ratified Withdrawal Agreement (“Deal” or “No Deal”).

Brexit with Withdrawal Agreement

If the/a 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 (i.e. 29 March 2019) 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 on 29 March 2019, temporary, transitional arrangements will apply from 30 March 2019 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 on 29 March 2019 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.
  • Note that, after Brexit, a residence status in one member state will not provide work or residence rights in any other member state.

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.

On 27 February 2019, the UK government accepted an amendment by Conservative MP Alberto Costa, which proposed that the UK and EU commit to the citizens' rights part of the Withdrawal Agreement in the case of no deal.

On 4 March 2019, the UK government sent a letter to the lead EU negotiator, Michel Barnier, requesting that both sides consider solutions for safeguarding citizens’ rights.

Switzerland

The agreement reached by the Swiss and UK government protecting the rights of Swiss nationals currently residing in the UK and the reciprocal rights of UK nationals currently residing in Switzerland, after the UK leaves the EU, also covers a no-deal scenario.

The agreement, signed on 25 February 2019, enters into force on 1 January 2021 in a deal scenario (after the transition period), or on 30 March 2019 in a no-deal scenario.

The Swiss Federal Council has also decided that, in the event of the UK’s disorderly exit from the EU (i.e., without a ratified Withdrawal Agreement), a separate quota of work permits will be made available from 30 March 2019 to British citizens who wish to enter Switzerland to work.

EEA EFTA States

The separation agreement reached between the UK, Iceland, Liechtenstein and Norway, protecting citizen's rights after Brexit, does not cover a no-deal scenario, but the governments have also reached an EEA EFTA No Deal Citizens’ Rights Agreement to protect the rights of UK nationals living in the EEA EFTA states and EEA EFTA nationals in the UK, in a no deal scenario.

Social Security

On 26 February 2019, the Employment and Social Affairs Committee of the European Parliament adopted measures aiming to safeguard entitlements to social security benefits based on insurance, employment or residence acquired before UK’s withdrawal from the EU.

These contingency measures would apply to EU citizens living in the UK and UK citizens living in one of the 27 member states who have acquired social entitlements due to the free movement of people, and guarantee they do not lose those entitlements in the event of a no-deal Brexit.

The measures will be adopted unilaterally by the EU if confirmed by a vote in the 11-14 March plenary session of the EU Parliament. Once the legislation is published, it will enter into force only if the UK leaves the EU with no withdrawal agreement in place.

Passport rules

The rules for travel to Schengen countries change if the UK leaves the EU with no deal. After Brexit the following rules will apply:

  • UK nationals must 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.
  • These new rules do not apply when travelling to Ireland.
  • Bulgaria, Croatia, Cyprus and Romania are not in the Schengen area and have their own entry requirements.

Action Items

  • Make sure all UK employees and their family members residing in an EU member state have submitted EU registration applications before 29 March 2019;
  • Tell UK employees resident in an EU member state to start preparing documents in support of immigration applications, for example: 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 any UK to EU move start dates forward to before 29 March 2019;
  • Be prepared for possible lengthy immigration application requirements for UK nationals moving to the EU, from 29 March 2019 if we reach a “No Deal” situation;
  • 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.