On 3 September 2018, the initiative ‘The UK in a Changing Europe’ published a report entitled ‘Cost of No Deal: Revisited”. The report contains a comprehensive analysis of the consequences of a “no deal” Brexit, i.e. a scenario in which the UK would formally leave the UK, without reaching an agreement with the remaining 27 member states as to the nature of EU/UK relations once formal withdrawal has taken place. This blog post focuses on just one aspect of the report: the cost of a No-Deal Brexit on EEA nationals in the UK and British nationals in the EU in the event of a ‘No Deal’ Brexit.
The question that arises in such a scenario is whether EEA citizens living in the UK would suddenly lose all entitlement to remain once the UK has formally exited the EU, on the basis that, by definition, no agreement as to their status would have been reached. In essence, would anyone from an EU member state suddenly become illegal after a ‘No Deal; Brexit? What would be the corresponding situation for UK nationals living on the territory of an EU member state?
In its report, The UK in a Changing Europe concludes that a sudden loss of lawful leave for EEA nationals living in the UK would be highly unlikely, not least because the UK government has consistently and publicly maintained that EEA citizens already present will not be removed from the UK after Brexit, regardless of the outcome of the on going negotiations. Further, the EU Withdrawal Act and recent amendments to Immigration Rules have incorporated the provisions of EU law on freedom of movement into UK law. The rights of EEA citizens (and those from non-EU countries, like Norway and Switzerland) will only change, therefore, in the event Parliament changes the law.
This situation contrasts, however, with that of UK citizens residing in Europe, for whom a ‘No Deal’ Brexit would be “considerably more complex and potentially much more problematic”, according to The UK in a Changing Europe. Indeed, the report states that Member States of the EU have not yet made any steps to provisionally afford UK nationals anything similar to the status offered to EEA nationals in the UK. Further, there is no ‘contingency plan’ for British nationals in the event a deal is not forged on the UK’s withdrawal.
When the UK formally withdraws the law of the European Union, which affords rights to all EEA nationals (including the UK at present), will no longer protect UK nationals. Therefore the laws relating to immigration and residence in the remaining 27 member states of the EU, which give special status to EEA nationals may automatically cease to apply to UK nationals, because the UK would no longer be part of the EU or the EEA in any ‘No Deal’ Brexit. There would be nothing left to replace the rights of UK nationals, save for the national rules and regulations relating to non-EU migration of each individual member state. As Jonathan Portes, an author of the report, puts it: “There must be a serious risk that if the Withdrawal Agreement is not, in fact, agreed, there will be nothing at all in place in at least some countries.
The existence of the long term residence directive - which applies to non-EU third party nationals – provides some reassurance, as it and grants long-residence rights after five years to all third party nationals, which would in theory include UK nationals. The irony of UK nationals still having to look to EU law for their own protection after Brexit aside, settled status under these provisions confers fewer rights to third party nationals than EU law currently does to EEA nationals. It also leaves those who have not attained five years’ continuous residence without any protection whatsoever. Further problems would arise for UK nationals wishing to travel to the EU, who (again, in theory at least) could be subjected to the same requirements as third country nationals in a ‘No Deal’ scenario, which could mean having to apply for Schengen visas.
It is very difficult to see how it would be in the interests of either side and, so far, both sides have been keen to flaunt their desire to assure the rights of EEA nationals in the UK (and vice versa) post-March 2019, often portraying this as a ‘red line’ in any negotiation. But the fate of a tailored agreement on the UK’s status post-Brexit seems increasingly uncertain. And as the prospect of no deal at all looms ever larger on the horizon, there is cause for major concern, especially for the millions of people and families whose livelihoods and lives are at stake. With Brexit now just six months away, it must be alarming for these individuals that these issues are even relevant. Surely it is by far time to put theoretical concerns to bed, with concrete, legally binding measures.
Gherson can provide professional guidance in regards EEA Nationals. Should you wish to discuss the options available to you, 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.