Brexit: A year after the triggering of Article 50, but are we any closer to agreement?

29 March 2018

Today marks a year since the UK Prime Minister, Theresa May, triggered Article 50 on 29 March 2017. The UK is due to formally leave the EU (Brexit) on 29 March 2019 – in only one year.

After many twists and turns in the negotiation process, the UK and the EU finally reached an agreement in principle on citizens’ rights in December 2017, followed by the recent draft Withdrawal Agreement, reached earlier this month.

Timeline
Whilst the Withdrawal Agreement is preluded with ‘nothing is agreed until everything is agreed’, it provides the most comprehensive plan to date for what EU citizens and their employers should expect immediately post-Brexit. Key features of the agreement include:

  • the transition period following Brexit has been agreed to be between 30 March 2019 and 31 December 2020;
  • the cut-off date for the end of free movement has effectively moved to the end of the transition period. This means that EU nationals moving to the UK and UK nationals moving to the EU27 can do so on the basis of free movement rights until 31 December 2020 and may remain after that date under the terms of the Withdrawal Agreement. Similarly, employers would continue to have access to an EU migrant workforce until at least that date;
  • EU citizens wishing to remain in the UK after 31 December 2020 must apply for a status document – the deadline for doing so will be no earlier than 30 June 2021;
  • family members of EU nationals whose family relationship predates the end of the transition period will be able to join the EU national on EU law terms (less restrictive than UK law); and
  • EU arrivals coming to the UK after the end of the transition period are expected to be subject to a new (yet to be determined) immigration system.

Settled status
The settled status scheme, previously proposed by the UK government to apply to EU citizens lawfully resident in the UK on the day of Brexit, will now apply to those lawfully resident in the UK by the end of the transition period (including to those who already hold a permanent residence document). Lawful residence is to be interpreted as exercising ‘Treaty rights’ by either working, being self-employed, studying and/or being self-sufficient. However, the government has made indications that it will take a more generous interpretation than required by the Withdrawal Agreement, for example by not requiring comprehensive sickness insurance for students and self-sufficient people.

EU citizens wishing to remain in the UK after 31 December 2020 must apply for a status document under the Withdrawal Agreement (even if they already hold a document certifying that they have acquired permanent residence).

EU citizens with five years’ continuous lawful residence in the UK prior to 31 December 2020 should receive ‘settled status’. Those with less than five years lawful residence would be given ‘temporary’ or ‘pre-settled’ status to allow them to complete five years and become eligible for settled status.

Under the terms of the agreement, the UK government is required to allow a minimum of six months from the end of the transition period (ie until at least 30 June 2021) for EU citizens and their family members to apply for a status document. However, to avoid an avalanche of applications, the Home Office is expected to roll out the new scheme on a voluntary basis from later this year.

The settled status application system is expected to be a highly simplified, streamlined procedure, made online or via a mobile phone app, with very few questions and the ability to scan a passport and upload a selfie. In an attempt to further simplify the process, the Home Office is expected to carry out checks directly with other government departments (eg HMRC) to reduce the need for voluminous evidence as has historically been the case. Those who already hold a Permanent Residence document will be able to swap it for a settled status, free of charge. The status document is expected to be electronic rather than a physical document.

Retaining settled status
Under current free movement laws, EU citizens and their family members who have acquired permanent residence automatically lose this status if they are absent from the UK for over two years. Under the new agreement, they will be allowed to be absent from the UK for five consecutive years without losing their settled status.

Family members
The agreement provides that family members may continue to join EU nationals until the end of the transition period in the same way they are able to now. From 1 January 2021, only the following family members will be allowed to enter the UK under free movement rules, provided they can evidence that their family relationship with the EU national existed before 31 December 2020:

  • spouse / civil partner;
  • durable partner in a duly attested relationship;
  • children under 21;
  • dependent children older than 21; and
  • dependent direct relatives in the ascending line.

Children born or adopted after 31 December 2020 may also qualify, in certain circumstances

It is expected that family members entering the UK after the transition period and not falling within the exemptions above will be subject to the UK Immigration Rules which currently require a minimum annual income of £18,600 (or savings of £62,500 held for at least six months).

Further clarity needed
While there are a number of outstanding questions over the implementation of the Withdrawal Agreement, it provides more clarity than previously to EU citizens and their family members over their future in the UK.

The agreement will also help employers to plan their staffing at least in the short-term. It remains to be seen what the future immigration system for EU nationals entering after the transitional period will look like. The Migration Advisory Committee is due to publish their final report to the Home Office later this year and the Home Office has expressed its intention to develop their thinking around the new provisions on the basis of this research.

Next steps
Whilst the agreement is undoubtedly a step in the right direction, a lot more detail is required to provide complete clarity and certainty to EU citizens and their employers. Laura Devine Law will continue to bring you the latest on developments on citizens’ rights with our Countdown to Brexit series.

For further information on the implications of Brexit for employers and EU nationals, and our Brexit services, contact your assigned lawyer or email EUenquiries@lauradevine.com.

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