Whilst the Brexit debate shows no sign of slowing down, we have grappled with the current Home Office guidance to summarise what will happen in the event of the UK leaving the EU with a deal or without a deal (known as a “no-deal” Brexit). Note that the below guidance is provided as a summary and is subject to change.

Leaving the EU with a Deal

If the UK leaves the EU on 29 March 2019 under the terms of the Withdrawal Agreement, the UK would leave the EU but European nationals would continue to be able to enter the UK and take up residence for the first time until the end of the transitional period on 31 December 2020.

Those entering the UK or those who were already resident in the UK will be required to apply for either Settled or Pre-Settled Status by 30 June 2021, after which it will be mandatory to hold one of the following two documents to evidence an entitlement to live in the UK:Settled Status – for EU nationals and their family members who have been continuously and lawfully resident in the UK for five years which will allow them to live in the UK indefinitely; or

  • Settled Status – for EU nationals and their family members who have been continuously and lawfully resident in the UK for five years which will allow them to live in the UK indefinitely; or
  • Pre-Settled Status – for EU nationals and their family members who have not yet lived in the UK for five years which will allow them to continue to live in the UK for a further five years. At the point they have accrued five years’ continuous and lawful residence in the UK, they will be able to apply for a settled status document.

The settlement scheme is based on proof of residence only and there is no requirement to have been exercising Treaty Rights. The application system has been designed to be as simple as possible, involving proof of identity, nationality and residence only, with proof of residence being checked via HMRC records rather than the submission of documents.

The scheme is already open on a live trial basis and will be fully open from 30 March 2019. The Government has recently announced that the fee it had planned to charge will be scrapped. Further details about the scheme can be found here.

Leaving the EU without a Deal

The Government has confirmed that in the event of a no-deal Brexit, EU citizens and their family members living in the UK by 29 March 2019 will be able to stay in the UK and apply for Settled or Pre-Settled Status as set out above. The only difference to EU citizens living in the UK before 29 March, is that the deadline to apply under the settlement scheme will be brought forward to 31 December 2020 (not 30 June 2021).

As there will be no implementation period, new EU migrants arriving after 29 March 2019 would not be able to apply under the settlement scheme. This is because they would not be able to demonstrate they were resident in the UK on 29 March 2019.

The Government’s Policy paper states that the new UK immigration system (to apply to European and non-European nationals alike) will be implemented from 1 January 2021. This suggests that until the new system is in place EU nationals arriving after 29 March 2019 would be able to live and work in the UK but it is not entirely clear.

It may be necessary to consider applying to enter the UK under the rules that apply for non-EU migrants. As with many aspects of Brexit, however, this is not currently clear and the status of EU migrants under a no-deal Brexit is uncertain.

The Future of UK Immigration

The Government published its White Paper on the UK’s future immigration system in December 2018. The intention is to implement a scheme that will not give preferential treatment to EU nationals.

The main features of the new scheme will be as follows:

  • There will be no visa requirement for EU nationals wishing to enter the UK as a visitor or tourist for up to 6 months;
  • The Tier 5 Youth Mobility arrangements will be extended to include EU nationals;
  • The skills threshold will be reduced from highly skilled to skilled for all countries, however, the minimum salary requirement will be £30,000 (note this is subject to consultation) and there will no longer be a cap on the number of skilled workers;
  • As a transitional measure, a time limited route for temporary short term workers will be implemented. This will allow short-term workers to enter the UK for a maximum of 12 months, however, the cooling off period will still apply; and
  • Bachelor and Masters graduates will be permitted six months post-study leave and PhD students will be permitted a one year of post-study leave.

Save for the above, all student, family and settlement routes will remain the same and EU nationals will be required to apply under the current Immigration Rules.

Current Arrangements

For the period during which the UK remains in the EU, EU nationals and their family members can still apply for permanent residence if they meet the current requirements. The Home Office confirms when permanent residence was acquired (normally on whatever date the applicant can show that they were living in the UK for five years exercising treaty rights) which will enable applicants to apply to naturalise as British one year after the date of acquisition of permanent residence. It is not clear if the new rules will backdate Settled Status in the same way. Accordingly, applicants who choose to wait and apply under the settlement scheme may delay their eligibility to apply to naturalise.