Following the Brexit referendum, the position of EU nationals in the UK has become part of the complex withdrawal negotiations. After months of uncertainty, in June 2018, the Government announced the details of the agreement reached with the EU regarding protecting the rights of EU nationals in the UK. The Principles of the proposed Withdrawal Agreement were to be implemented by means of the EU Settlement Scheme, which has already been piloted within the higher education and healthcare sectors and is reportedly working well.
The EU Settlement Scheme
The scheme provides for generous timescales and allowances to enable EU nationals to secure their status in the UK past the withdrawal date, 29 March 2019 (as things stand at the moment).
Most importantly, the scheme makes a shift towards focussing on proving the residence of EU nationals in the UK, as opposed to the previous focus on EU nationals having to prove they have been exercising EU Treaty Rights in the UK. This was a welcome move, as many EU nationals struggled to evidence their employment history in the UK, or were simply not aware of some requirements they had to meet, such as obtaining private medical insurance in certain circumstances.
In summary, the scheme introduces two types of status; settled and pre-settled. Settled status is to be granted, if the applicant has completed a continuous period of 5 years of residence in the UK. Anyone who has not reached 5 years by 31 December 2020 can apply for pre-settled status to secure their right to remain in the UK past the end of 2020.
The scheme is also to provide for a user friendly and easier application process, where the Home Office caseworkers are to obtain the necessary data directly from other government departments where possible, as opposed to putting the burden of collecting evidence onto the applicants.
In terms of timescales, the proposed scheme offers generous implementation periods, to allow EU nationals, and their families, sufficient time to make arrangements to secure their status in the UK. Despite the UK leaving the EU in March 2019, there is to be no change in EU nationals’ status until 31 December 2020. Furthermore, the draft Withdrawal Agreement provides for a ‘grace period’ until 30 June 2021, which gives any potential applicants even more time to organise their applications. Lastly, non-EU family members are to be able to join the EU national residing in the UK after the end of 2020, as long as the relationship was established prior to that date.
‘No deal’ scenario
As can be seen from this week’s developments, the Government’s negotiated deal might not necessarily be approved by Parliament. The Government expressed hopes that a deal with the EU can still be reached, but at the same time, intensified efforts to prepare the country for a ‘no deal’ Brexit. On 6 December 2018, a policy paper was published by the Secretary of State for Exiting the EU setting out the position ‘in the unlikely event of a ‘no deal’ scenario’, as declared in the opening paragraphs of the document.
The policy paper provides for some ‘necessary’ changes for the eventuality of no deal being reached. In summary, the generous concessions of the proposed Withdrawal Agreement are removed. The Government would only guarantee the rights of EU nationals as long as they start residing in the UK prior to 29 March 2019. The deadline for applications would be the end of 2020, with no grace period. Non-EU family members would only be eligible to apply to join their EU family members under the scheme until March 2022.
As can be seen, EU nationals are likely to lose out in the event of a ‘no deal’ Brexit with the terms announced being much less favourable than those contained in the Settlement Scheme proposed following passing of the draft Withdrawal Agreement.
With the vote in Parliament being postponed and the Prime Minister headed back to the EU, we seem to be a long way from having clarity on the position of EU nationals and their families in the UK, despite the withdrawal date being only a few months away.
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