A no deal Brexit… a concept that was once unimaginable is becoming more and more possible by the day. The UK’s new Prime Minister, Boris Johnson, has vowed that the UK will leave the EU on 31 October 2019 with or without a deal. With no indication that Europe are prepared to renegotiate the withdrawal agreement, a no-deal Brexit is becoming ever more likely.
So what would a no deal Brexit mean for EU nationals in the UK?
The government has made it clear that in the event of a no deal Brexit, EEA nationals residing in the UK on the day that the UK leave the EU will have the right to remain in the UK. In the event of a no deal Brexit, EEA nationals will need to register under the EU Settlement Scheme by 31 December 2020.
But what about an EU national’s family members in the event of a no deal Brexit?
Family members of EEA nationals who are in the UK on the date that Brexit occurs will be allowed to remain (again they will be required to register under the EU Settlement Scheme by 31 December 2020).
The government has been clear that it will protect the rights of family members of EEA nationals residing in the UK at the time of Brexit to join the EEA national in the UK.
In the Policy Paper written for Citizens’ Rights – EU citizens in the UK and UK nationals in the EU – it states that
“EU citizens with pre-settled or settled status under the EU Settlement Scheme would be able to be joined in the UK under the scheme, by 29 March 2022, by existing close family members, such as children, spouses and partners, parents and grandparents living overseas at exit, where the relationship existed by exit day (or where a child was born overseas after this date) and continued to exist when the family member applied”.
In this sweeping statement, the policy seems very clear-cut. But is it?
Non-EEA family members
Non-EEA family members who are outside the UK will be entitled to apply for a Family Permit which allows them to come to the UK to join their EEA family members who reside in the UK. When the family member arrives, they will need to register under the EU Settlement Scheme within 3 months of their arrival. This route will lead to settlement.
EEA family members
EEA family members of an EEA national residing in the UK at the time of Brexit will not be able to come to the UK after the date Brexit occurs and register under the EU Settlement Scheme. Instead, they will have to come to the UK and if they stay for longer than 3 months apply for European temporary leave to remain. This will grant individuals the right to remain in the UK for up to 36 months but will not lead to settlement. If the EEA national wishes to remain in the UK for more than 3 years, they will need to apply for leave under the new immigration system, which is scheduled to come into effect from 1 January 2021. If the individual does not qualify for a status under the new immigration system, they will be required to leave the UK.
So in reality, the policy does not reflect the sweeping statement in the Policy Paper. In fact, these rules have resulted in a situation where EEA nationals will be treated less advantageously than non-EEA nationals in the event of a no deal Brexit.
Let us look at some situations of how this could apply in real life:
Example 1 – Non-EEA family member:
Anna is a French national. She is married to Simon, an Australian national. Anna gets a job in London and relocates to London on 1 September 2019. Simon is unable to relocate to the UK now as he needs to serve out a 6 month notice period at his job in Australia. Simon is planning to relocate to the UK in March 2020, once he is able to leave his job.
On 31 October 2019, the UK leaves the EU without a deal.
This does not really affect Simon’s plans of relocating. Simon can apply for a Family Permit in February 2020 and relocate to the UK in March 2020. He registers under the EU Settlement Scheme when he arrives and is granted Pre-Settled Status which is valid for 5 years. In March 2025, Simon applies for and is granted Settled Status (Indefinite Leave to Remain in the UK).
Example 2 – EEA family member:
Raphael is married to Isabella. They are both Spanish nationals. Raphael and Isabella have two children together, Diego who is 17 and Nina who is 13. Raphael is offered his dream job in London, starting in September 2019. Isabella and Raphael decide that as Diego is going into his last year of school, it would be better for him to complete this year in Madrid. Isabella will stay with the children in Madrid until summer 2020, when she and Nina will relocate to the UK to join Raphael (Diego may stay in Spain for university or relocate to the UK).
On 31 October 2019, the UK leaves the EU without a deal.
In June 2020, Isabella and Nina are ready to relocate to the UK. They travel to the UK and discover that the only leave that they can be issued with is European temporary leave to remain in the UK, which is only valid for 3 years. This leave does not lead to Settled Status (Indefinite Leave to Remain in the UK). Isabella and Nina are informed that if they wish to stay in the UK after the expiry of their temporary leave, they will be required to apply for a different status under the new immigration system or leave the UK.
These two examples demonstrate the bizarre situation that has been created in the rules and guidance that the Home Office have issued to prepare the UK for leaving the EU without a deal. It seems fundamentally absurd for the system to be more favourable to non-EEA nationals than it is to EEA nationals.
This urgently needs to be reviewed and addressed by the Home Office and a solution proposed whereby the rights of family members of EEA nationals are protected, regardless of whether that family member is an EEA national themselves. The Home Office needs to introduce a system which actually reflects the policies set forward in their Policy Paper.
If you have any queries relating to the EU Settlement Scheme and its operation, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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Solicitor in our Corporate & Complex Teams