7 December 2018

With parliament due to vote next week on the draft Withdrawal Agreement, the Government has at last published its proposals for EU citizens rights in the event of a ‘no deal’ Brexit.

Key provisions

• EU citizens (and family members) who are residing in the UK by 29 March 2019 will be permitted to remain in the UK after Brexit and must apply under the EU Settlement Scheme (EUSS) if they wish to remain beyond 31 December 2020. Under the EUSS (which has been operating in a pilot phase since 28 August 2018), those EU nationals with 5 years’ residence in the UK should be granted ‘settled status’ (indefinite leave to remain) and those with less than 5 years’ residence receive ‘pre-settled status’ (temporary leave to remain to enable them to accrue the 5 years required for settlement).
• EU citizens (and family members) may come to the UK between 1 April 2019 – 31 December 2020 to live/work but, in contrast to the draft Withdrawal Agreement, they will NOT be able to apply under the EUSS to remain – this means that by 31 December 2020, they must either apply under the Immigration Rules (in the same way as non-EU applicants) or leave the UK
• Applications under the EUSS must be submitted by 31 December 2020 – a shorter deadline than under the draft Withdrawal Agreement (30 June 2021).
• The EUSS will continue to require simple residence in the UK (rather than proof of exercise of ‘Treaty rights’ (eg work, study, self-sufficiency) required under EU law).
• For family members subsequently joining a ‘settled’ EU national:
  • a new cut-off date of 29 March 2022 will be introduced for applications from close family members to join EU nationals with settled status, where the relationship existed by 29 March 2019 (except for children born overseas after this date);
  • a cut-off date of 31 December 2020 will apply to spouses/partners where the relationship began after exit, and to other dependant relatives;
  • family members not meeting the above will be required to apply under the UK Immigration Rules (for example currently requiring a minimum income of £18,600 per annum or savings of £62,500 for spouse/partner applications).
• There will be no right of appeal (only administrative review or judicial review as remedies to challenge a refusal under the scheme).
• It will be made easier to remove EU nationals convicted of minor crimes – the higher EU threshold would continue to apply to crimes committed before exit, but the lower UK threshold will apply to crimes committed after 29 March 2019.

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