By  Andrew Osborne, Antonia Grant

Firm:  Lewis Silkin LLP 

This article reviews the status of EEA citizens in the UK both in the event of the UK leaving the EU with a withdrawal agreement and of a no-deal Brexit.

With Brexit day pushed back to 31 October and the fate of the UK’s future relationship with the EU still up in the air, it is understandable that many EU, EEA and Swiss citizens (’EEA citizens’) on this side of the English Channel remain uncertain about how to protect their rights in the UK.

If there’s a deal?

If the UK leaves the EU with a withdrawal agreement, a transition period will be in place until 31 December 2020. This means that EEA citizens and their families can continue to enter the UK under free movement principles until the transition period is over.

Under the EU Settlement Scheme, EEA citizens who enter the UK before the end of the transition period will be able to apply for either ‘settled status’ or ‘pre-settled status’ depending on how long they have been continuously resident in the UK. With limited exceptions, the deadline to apply will be 30 June 2021.

To acquire settled status, EEA citizens or their close family members will need to have been continuously resident here for five years by their application date. Settled status is also known as as Indefinite Leave to Remain or ILR.

To acquire pre-settled status, EU citizens will need to have entered the UK before 31 December 2020. Family members of EEA citizens with status under the scheme will need either to have entered the UK before 31 December 2020, or to have been in a relationship with the EEA citizen but living outside the UK on 31 December 2020. They must still be in the relationship at the time they apply. There will also be provisions to enable non-British citizen children born in the UK or abroad after 31 December 2020 to qualify for pre-settled status. When granted, family members will be given pre-settled status for five years. They can apply for settled status as soon as they have been continuously resident here for five years and do not need to wait to do this until their pre-settled status is due to expire.

Those with settled or pre-settled status will continue to have access to benefits such as healthcare and pensions in the UK.

If there’s no deal?

Only EEA citizens who are already resident in the UK on 31 October 2019 will be eligible to apply under the EU Settlement Scheme. They and their family members who are resident in the UK by the date of exit will need to apply under the scheme by 31 December 2020 to protect their lawful immigration status in the UK. This is six months earlier than the deadline that would apply in a deal situation.

Family members who have a relationship with the EEA citizen by 31 October 2019 but are not living in the UK at that date, as well as children born abroad after exit, will need to apply under the EU Settlement Scheme by 29 March 2022. They must continue to have the relationship with the EEA citizen at the date they apply.

Family members who establish a relationship after 31 October 2019 with an EEA citizen who has status under the scheme will be eligible to make an application for pre-settled status until 31 December 2020.

After a no-deal Brexit on 31 October 2019, EEA citizens and their family members will not be able to enter or stay in the UK under free movement principles anymore. Once free movement has ended, EEA citizens who lack an existing right of admission and fall outside of the Settlement Scheme will need to apply for European Temporary Leave to Remain for stays that are longer than three months.

European Temporary Leave to Remain will allow EEA citizens to stay in the UK for up to 36 months with no restrictions on their stay, meaning that they can visit, work and study here during this time without need for further approval. But this will not lead to Indefinite Leave to Remain or status under the Settlement Scheme: any EEA citizen who wants to stay in the UK for more than 36 months will need to apply under the post-Brexit immigration system which is due to be implemented from January 2021.

The Government are being very clear that European Temporary Leave to Remain does not give any rights or promises under the new system as its parameters have not yet been set.

What can you do now?

EEA citizens and their family members who hold British citizenship or Indefinite Leave to Remain do not have to do anything to protect their rights after Brexit. However, those with Indefinite Leave to Remain may wish to apply under the EU Settlement Scheme as this would mean their status would only lapse after a continuous absence of five years from the UK, instead of two. Those with documents issued under the EEA Regulations must swap their entitlement directly for status under the EU Settlement Scheme by the relevant deadline.

For EEA citizens and their family members who currently call the UK home, obtaining settled or pre-settled status is something to start thinking about before the October rush. Employers should also consider their recruitment pipeline and whether to bring new EEA citizen recruits to the UK before exit date.