The UK has an extension of Article 50 period until 31 October 2019 and in the evolving UK political situation, ‘no deal’ scenario seems like a probability than a mere possibility. Evidently, a tremendous amount of work has been done to protect the rights of EU, EEA and Swiss nationals already living in the UK, covering both eventualities of UK leaving the EU with a deal or without a deal. In the event that UK leaves the EU with no deal, the UK has made provision set out in its policy paper, that it will adopt ‘an approach based on the Withdrawal Agreement’ which was negotiated with the EU institutions and has not taken effect as it failed to get sufficient support.
Part 2 of the draft Withdrawal Agreement was drafted to preserve the rights of the EU nationals resident in the UK by giving them new status, Settled or Pre Settled status under the Settled status scheme. In line with the draft Withdrawal Agreement, the UK introduced the EU Settlement scheme, which became open to the public on 30th March 2019. Despite assurances to safeguard the rights of EU nationals resident in the UK, the provisions put in place are likely to have consequences.
The UK has set out its position that there would be some changes if the UK leaves the EU without a deal and these are:
- There would be no agreed implementation period, and the assurance to protect status under the EU Settlement scheme will apply to those EU citizens and their family members who are resident in the UK by the exit day, 31 October 2019 (at present). They will continue to be able to work, study, and access benefits and services in the UK on the same basis as they do now.
- EU citizens and their family members resident in the UK by exit day would have until 31 December 2020 to apply for a status under the EU Settlement Scheme and there will be no six months grace period beyond this. The new UK Immigration system would be implemented from 1 January 2021.
- A decision to refuse the status under the EU Settlement Scheme would be open to challenge only by way of administrative review and judicial review, as is the case with most leave to remain applications under the Immigration Rules. There would be no appeal right.
- The EU deportation threshold would apply to crimes committed before exit and UK deportation threshold will apply after the exit day.
Those who have pre-settled or settled status would be able to be joined in the UK by family members (children, spouses and partners, parents and grandparents) by 29 March 2022, where the relationship existed by exit day. After this, the UK Immigration rules will apply, which will align the rights of EU citizens with the rights of UK nationals from 30 March 2022.
- EU citizens and their family members who do not apply to stay in the UK by the 31 December 2020, will not be able to demonstrate their rights to work, study, access benefits and services, and risk becoming overstayers.
- Those with pre-settled status must accrue five years of continuous residence before they become eligible for settled status. Any absence from the UK for six months will break the continuity of residence, which can be rectified as they long as the residence is resumed. However, if residence in the UK is not resumed by the exit date, you will not qualify under the EU Settlement scheme at all.
- Those with settled status can lose this status through absence from the UK of a period exceeding 5 consecutive years in accordance with the draft Withdrawal Agreement. Whereas, the Immigration rules allow absences of no more than two consecutive years outside the UK before entitlement to return to the UK as returning resident is lost. There is a gap in the proposed legislation and the immigration rules under which the EU Settlement scheme operates which need to be aligned.
Protect your right
- Those with less than five years qualifying residence in the UK should apply for pre-settled status and those with five years or more of qualifying residence for settled status.
- Those who have a valid UK permanent residence document, must either apply to the convert their status to settled status or apply for citizenship by 31 December 2020.