United Kingdom - EU and UK citizens rights if a "no deal" Brexit confirmed

The UK government has issued a policy paper confirming the treatment of EU and EEA nationals in the UK, and UK nationals in the EU/EEA, in the event of a “no deal” Brexit.

What does this mean? 

The negotiated Brexit Withdrawal Agreement gives important protections for EU nationals in the UK, and UK nationals in the EU. It gives all EU nationals already in the UK a route to stay permanently via the EU Settlement Scheme and creates an implementation window until 31 December 2020 where free movement would continue. This agreement has been approved by the UK cabinet and by the EU at a recent summit, but must still pass through the UK Parliament. 

The UK government has clarified citizens rights and what will change if the Withdrawal Agreement is not passed:

EU nationals and family members living in the UK before 29 March 2019: 

• Are still guaranteed to be able to stay in the UK and have a route to permanent residence using the EU Settlement Scheme on the same terms if they are living in the UK by 29 March 2019.
• Will have a reduced timeframe to apply under the EU Settlement Scheme – they must apply by 31 December 2020 and will not benefit from the 6 months grace period for applications until 30 June 2021 proposed in the Withdrawal Agreement. 
• Will continue to be able to rely on their EU passport or national identity card if they are asked to evidence their right to reside or right to work in the UK, for example when applying for a job. 
• Can be joined by family members up until 29 March 2022 provided the EU nationals has settled status and the relationship existed at 29 March 2019 and continues to exist at the time the family member applies. Children born after 29 March 2019 are entitled to the same rights. After 29 March 2022, UK immigration rules will apply. 

Notably, the policy paper does not deal with EU nationals entering the UK after 29 March 2019, but before the new immigration system is implemented in 1 January 2021. 

The policy paper also sets out that:

• Frontier workers will be protected. If they spend sufficient time in the UK they will be allowed to apply for settled status under the EU Settlement Scheme. Otherwise, they will be able to obtain a separate UK immigration status which allows them to continue frontier working into the UK after the UK exits the EU.
• Access to healthcare, education, benefits and social housing - will continue on the same basis as now for those who were in the UK before 29 March 2019.
• Professional qualifications will continue to be recognised if the holder applied for or received recognition before 29 March 2019.
• Iceland, Liechtenstein, Norway and Switzerland nationals will be negotiated under separate deals. 
• It will only be possible to challenge a refusal decision under the EU Settlement Scheme by Administrative Review or Judicial Review. There will be no referral to the Court of Justice of the European Union as it will have no jurisdiction in the UK after 29 March 2019.

National identity cards would remain valid for travel to the UK until 31 December 2020, but this is not guaranteed to remain the case after the new system is introduced from 1 January 2021. 

UK nationals in the EU: 

• The UK government cannot act unilaterally to protect the rights of UK nationals in the EU as with the EU Settlement Scheme, but has urged EU Member States to act reciprocally to protect UK nationals and confirm their rights. 
• UK nationals returning to the UK will have access to education and NHS-funded healthcare on the same basis as currently resident UK nationals. Further information will be published regarding UK nationals returning with EU and non-EU citizen family members.

Deloitte’s View

This policy statement confirms that there will be crucial differences for citizens’ rights in a “no deal” scenario. It should reassure the many EU nationals in the UK and their employers that they have a right to stay, and can continue to plan for the EU Settlement Scheme roll out in the early 2019 (albeit with a reduced deadline to make their applications of 31 December 2020). The clear issue is for new arrivals from the EU after Brexit on 29 March 2019, since very little detail has been disclosed as to how new arrivals will be treated in a “no deal” scenario.