Following the Conservative party’s success at the general election on 12 December 2019 the withdrawal agreement agreed with the EU on 17 October 2019 (as well as the previously agreed, and related, EEA EFTA Separation Agreement and Swiss Citizens’ Rights Agreement) is now likely to be implemented. Under this latest withdrawal agreement the provisions on citizens’ rights essentially remain unchanged from the previous version.
In essence, whilst there remains the possibility of the UK not subsequently concluding an agreement with the EU regarding their future trading relationship, the citizens’ rights provisions in the withdrawal agreement would remain binding on both parties. Note to that the withdrawal agreement does allow for an extension to the transition period, which could be agreed in the context of those trade talks and in which case the dates referred to below may be delayed into the future, although to date Boris Johnson has said that no such extension will be requested.
For the time being, assuming the 17 October 2019 withdrawal agreement is implemented, the UK will leave the EU on 31 January 2020, with a transition period to last until 31 December 2020.
EU Settlement Scheme
During the transition period, the Immigration (European Economic Area) Regulations 2016, (EEA Regs 2016) will continue to have effect, so EEA/Swiss nationals (and relevant non-EEA/Swiss nationals) will be able to continue to travel to the UK and reside here during that period under existing EU free movement law.
The citizens’ rights provisions of the withdrawal agreement will come into effect. These aim to protect the residence status (and related rights) of EEA/Swiss citizens resident in the UK by the end of the transition period, and of British citizens in those countries. The UK Government has already implemented many aspects of these provisions, via the ‘EU Settled Status Scheme’ (EUSS). This scheme is in many ways more generous than the withdrawal agreement, in particular that it does not require persons to have been exercising an EU Treaty right over the relevant residence period, rather that they were just present in the UK.
Given the size of the Conservative majority, it is not likely that the mandatory registration requirement under the scheme will be replaced with a ‘declaratory system’, as has been called for by the Labour party and various advocacy groups. Applicants will have until the end of June 2021 to have applied under the EUSS, or they may face removal and/or the effects of the hostile environment measures (although there is provision for late applications if there is a good reason). Extended family members (other than durable partners in some circumstances) need to have been granted, or have applied for, a residence document under the EEA Regs 2016 before the end of December 2020 in order to be eligible under the scheme.
There are aspects of the agreed citizens’ rights provisions that have not yet been implemented in the EUSS, and will now need to be implemented. For example, rights of appeal will need to be instituted, an Independent Monitoring Authority, and provisions relating to future entry to the UK for existing close family members of eligible EEA/Swiss citizens who are outside the UK at the end of the transition period.
The immigration system after Brexit
Over the coming year the UK Government will finalise its plans for a new post-Brexit immigration system. This is likely to feature aspects of the White Paper proposals of Teresa May’s Government, but amended slightly following the more recent shift of emphasis in Boris Johnson’s administration towards an ‘Australian Points-Based System’. It is unlikely that many of the most controversial aspects of the current immigration system for non-EEA nationals, such as the high fees for immigration applications, ‘hostile environment’ requirements on checking status by employers, banks and the NHS etc, and the financial requirement for spouse/partner applications, will change. The new Government is also likely to move ahead with its plan to replace physical immigration documents with digital status, and other aspects of digitisation of immigration control.
It is likely that the EEA Regs 2016 will be revoked from the end of the day on 31 December 2020, and from that point on all EEA/Swiss citizens who have not already obtained status under the EUSS will require leave to enter or remain under the new immigration system (bar a small cohort which includes those who are outside the UK and are existing close family members of registered EEA/Swiss citizens, and possibly those eligible under the scheme but who have not yet registered by June 2021).
It is also likely that the new system will take effect via an entirely redrafted set of Immigration Rules.
At this stage, arguably the best advice for individuals and employers is to:
- ensure that all non-British and Irish citizens who are eligible to apply under the EUSS do so before the deadline, ideally before the end of 2020;
- become familiar with the citizens’ rights provisions in the current withdrawal agreement;
- scrutinise all relevant legislation that is introduced order to implement the withdrawal agreement and the new immigration system; and
- keep up to date with all new announcements/proposals in relation to proposals for the new immigration system.