IMPACT – HIGH

What is the news? The U.K. government has issued a policy paper confirming the treatment of EU and EEA nationals in the U.K., and U.K. nationals in the EU/EEA, in the event of a “no deal” Brexit.

What does this mean? The negotiated Brexit Withdrawal Agreement provides important protections for EU nationals in the U.K., and U.K. nationals in the EU. It gives all EU nationals already in the U.K. a route to stay permanently via the EU Settlement Scheme and creates an implementation window until Dec. 31, 2020 in which free movement would continue. This agreement has been approved by the U.K. cabinet and by the EU at a recent summit, but must still pass through the U.K. Parliament.

The U.K. government has clarified citizens’ rights and what will change if the Withdrawal Agreement is not passed. EU nationals and family members living in the U.K. before March 29, 2019:

  • Are still guaranteed to be able to stay in the U.K. and have a route to permanent residence using the EU Settlement Scheme on the same terms if they are living in the U.K. by March 29, 2019.
  • Will have a reduced time frame during which they may apply under the EU Settlement Scheme—they must apply by Dec. 31, 2020 and will not benefit from the six-month grace period for applications until June 30, 2021 as proposed in the Withdrawal Agreement.
  • Will continue to be able to rely on their EU passport or national identity card if they are asked to evidence their right to reside or right to work in the U.K., for example when applying for a job.
  • May be joined by family members until March 29, 2022 provided the EU national has settled status and the relationship existed as of March 29, 2019 and continues to exist at the time the family members apply. Children born after March 29, 2019 are entitled to the same rights. After March 29, 2022, U.K. immigration rules will apply.

Notably, the policy paper does not deal with EU nationals entering the U.K. after March 29, 2019 but before the new immigration system is implemented on Jan. 1, 2021.

The policy paper also sets out that:

  • Frontier workers will be protected. If they spend sufficient time in the U.K. they will be allowed to apply for settled status under the EU Settlement Scheme. Otherwise, they will be able to obtain a separate U.K. immigration status which allows them to continue frontier working into the U.K. after it exits the EU.
  • Access to healthcare, education, benefits and social housing will continue on the same basis as now for those who were in the U.K. before March 29, 2019.
  • Professional qualifications will continue to be recognized if the holder applied for or received recognition before March 29, 2019.
  • Iceland, Liechtenstein, Norway and Switzerland nationals’ rights will be negotiated under separate deals.
  • It will only be possible to challenge a refusal decision under the EU Settlement Scheme by administrative review or judicial review. There will be no referral to the Court of Justice of the European Union, as it will have no jurisdiction in the U.K. after March 29, 2019.
  • National identity cards would remain valid for travel to the U.K. until Dec. 31, 2020, but this is not guaranteed to remain the case after the new system is introduced on Jan. 1, 2021.

U.K. nationals in the EU:

  • The U.K. government cannot act unilaterally to protect the rights of U.K. nationals in the EU as with the EU Settlement Scheme, but has urged EU member states to act reciprocally to protect U.K. nationals and confirm their rights.
  • U.K. nationals returning to the U.K. will have access to education and healthcare provided by the National Health Service on the same basis as currently resident U.K. nationals. Further information will be published regarding U.K. nationals returning with EU and non-EU citizen family members.

Analysis & Comments: This policy statement confirms that there will be crucial differences for citizens’ rights in a “no deal” scenario. It should reassure the many EU nationals in the U.K. and their employers that they have a right to stay, and can continue to plan for the EU Settlement Scheme rollout in early 2019 (albeit with a reduced deadline to make their applications by Dec. 31, 2020). The greatest uncertainty is for new arrivals from the EU after Brexit on March 29, 2019, since very little detail has been disclosed as to how they will be treated in a “no deal” scenario.

Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.