On January 15, 2019, and again on March12, 2019, the United Kingdom parliament voted overwhelmingly against the Withdrawal Agreement negotiated between the UK government and the EU.

The article 50 process means that, as things stand, the UK will leave the EU on March 29, 2019, with or without a ratified deal.

On March 20, 2019, the UK Prime Minister wrote to the EU Council President, stating her intention to put the Withdrawal Agreement to a parliamentary vote for a third time, and requesting an extension of the Article 50 period until June 30, 2019, in order to pass the necessary legislation if the deal is approved. During any extension, the UK would remain an EU Member State and the situation for citizens’ residence rights would not change.

If the request for an extension is refused, the UK will crash out of the EU on March 29, 2019 with no Withdrawal Agreement, unless Article 50 is revoked, or a longer extension granted.

If a short extension is granted, perhaps on condition that the Withdrawal Agreement is passed, there are still several possible outcomes:

  • The deal and necessary legislation might be approved within the extended Article 50 period, so that an orderly Brexit can occur in May 2019, before the scheduled European Parliament elections.
  • The deal might not pass parliament (again). In this case:
    • there could be a no-deal Brexit on March 29, 2019, if parliamentary approval pf the deal is a condition of the extension; or
    • the UK government could ask for a longer extension of the Article 50 period in order to organize a general election or a ratifying referendum; or
    • the UK government may unilaterally revoke article 50, effectively cancelling Brexit.

Here we look at possible outcomes for EU and British citizens, with and without a ratified Withdrawal Agreement (“Deal” or “No Deal”).

Brexit with Withdrawal Agreement

If the/a deal is eventually ratified, free movement will continue until the end of the transition period (December 31, 2020 unless extended).

Note that the UK has reached separate agreements with the EEA EFTA states (Iceland, Liechtenstein and Norway), as well as with Switzerland, on protecting citizens’ rights after Brexit.

EU Citizens in the UK

  • All EU citizens arriving in the UK before December 31, 2020 will have until June 30, 2021 to register, through the EU Settlement Scheme;
  • Family members in a relationship with the EU citizen before the end of the transition period will be able to join those with settled status at any future date;
  • New immigration rules, applying to EU nationals arriving after transition, should come into effect by January 2021. EEA workers will be treated the same as non-European nationals under the existing points-based system, but with some amendments to the system.
  • Family members of an EU citizen arriving after December 31, 2020, will be subject to a future immigration scheme.

UK Nationals in the EU

  • The rights of UK nationals resident in the EU before the end of the transition period (December 31, 2020, unless extended), and of their family members, will be similarly protected, though registration schemes will vary between members states.

No-Deal Brexit

EU Citizens in the UK

Existing Residents

On December 6, 2018, the government published a policy paper outlining the UK government’s proposals for protecting EU citizens’ rights in case the UK leaves the EU without an agreed and ratified withdrawal deal.

In a no-deal Brexit scenario, with no transition period, the EU Settlement Scheme will still operate but the cut-off dates will be brought forward:

  • Only EU citizens already in the UK by Brexit day (i.e. March 29, 2019) will qualify, and they will have to apply by December 31, 2020;
  • Family members in a relationship with the EU citizen before Brexit day will be able to join those with settled status until March 29, 2022.

Other differences in the case of no deal include:

  • The Court of Justice of the EU (CJEU) would not have jurisdiction as regards EU27 citizens in the UK (under the withdrawal agreement it would have residual jurisdiction for eight years after the end of the transition period.
  • EU citizens would have no right to an appeal to an immigration judge.

New Arrivals

On January 28, 2019, the UK Home Office published a policy paper outlining its proposals for how it will treat EU citizens arriving in the UK after a no-deal Brexit.

According to these proposals, subject to parliamentary approval of the necessary legislation in the event that the UK leaves the EU without a ratified withdrawal agreement on March 29, 2019, temporary, transitional arrangements will apply from March 30, 2019 until December 31, 2020, after which a new immigration regime will be implemented. This means the UK would unilaterally grant EU citizens arriving after Brexit largely the same rights as entrants before Brexit, until the new immigration rules take effect, including the right to enter, stay, work and study, bring family and access benefits, only not backed by the legal authority of the European Court of Justice.

However, as the EU Settlement Scheme would not apply to new arrivals (in a no-deal scenario), their long-term rights would depend on a further unilateral offer from the UK, bilateral agreements with individual member states or a future relationship agreement with the EU.

UK Nationals in the EU

If the UK leaves the EU on March 29, 2019 without a ratified withdrawal agreement, then UK nationals will become third-country (non-EU) nationals immediately:

  • UK nationals wishing to visit the EU for up to 90 days will likely be able to do so without a visa, provided that the UK reciprocates for EU nationals (subject to the necessary legislation).
  • Falling under the visa-free regime means UK nationals will need to apply for ETIAS travel authorization prior to a trip to the EU, after January 1, 2021.
  • UK nationals wishing to enter an EU member state for stays of more than 90 days will require a visa.
  • UK nationals wishing to enter an EU member state for work will need to apply for work authorization, like other third-country nationals. They may qualify for short-term work permit exemptions where available.
  • UK nationals already resident in an EU member state by Brexit day will likely be able to stay and continue to work if they register in time, although this will depend on unilateral arrangements made by individual member states, which in turn may depend on a reciprocal offer by the UK.
  • Note that, after Brexit, a residence status in one member state will not provide work or residence rights in any other member state.

EU member states are in the process of establishing emergency arrangements for British citizens in the case of a no-deal Brexit, often with the proviso that a reciprocal offer by the UK is confirmed.

On February 27, 2019, the UK government accepted an amendment by Conservative MP Alberto Costa, which proposed that the UK and EU commit to the citizens’ rights part of the Withdrawal Agreement in the case of no deal.

On March 4, 2019, the UK government sent a letter to the lead EU negotiator, Michel Barnier, requesting that both sides consider solutions for safeguarding citizens’ rights.

Switzerland

The agreement reached by the Swiss and UK government protecting the rights of Swiss nationals currently residing in the UK and the reciprocal rights of UK nationals currently residing in Switzerland, after the UK leaves the EU, also covers a no-deal scenario.

The agreement, signed on February 25, 2019, enters into force on January 1, 2021 in a deal scenario (after the transition period), or on March 30, 2019 in a no-deal scenario.

The Swiss Federal Council has also decided that, in the event of the UK’s disorderly exit from the EU (i.e., without a ratified Withdrawal Agreement), a separate quota of work permits will be made available from March 30, 2019 to British citizens who wish to enter Switzerland to work.

EEA EFTA States

The separation agreement reached between the UK, Iceland, Liechtenstein and Norway, protecting citizen’s rights after Brexit, does not cover a no-deal scenario, but the governments have also reached an EEA EFTA No Deal Citizens’ Rights Agreement to protect the rights of UK nationals living in the EEA EFTA states and EEA EFTA nationals in the UK, in a no deal scenario.

Social Security

On February 26, 2019, the Employment and Social Affairs Committee of the European Parliament adopted measures aiming to safeguard entitlements to social security benefits based on insurance, employment or residence acquired before UK’s withdrawal from the EU.

These contingency measures would apply to EU citizens living in the UK and UK citizens living in one of the 27 member states who have acquired social entitlements due to the free movement of people, and guarantee they do not lose those entitlements in the event of a no-deal Brexit.

The measures will be adopted unilaterally by the EU if confirmed by a vote in the 11-14 March plenary session of the EU Parliament. Once the legislation is published, it will enter into force only if the UK leaves the EU with no withdrawal agreement in place.

Passport rules

The rules for travel to Schengen countries change if the UK leaves the EU with no deal. After Brexit the following rules will apply:

  • UK nationals must have at least six months left on their passports from the date of arrival. This applies to adult and child passports.
  • Any extra months over ten years on a passport (if it was renewed before expiry) may not count towards the six months that should be remaining for travel to Schengen countries.
  • These new rules do not apply when travelling to Ireland.
  • Bulgaria, Croatia, Cyprus and Romania are not in the Schengen area and have their own entry requirements.

Action Items

  • Make sure all UK employees and their family members residing in an EU member state have submitted EU registration applications before March 29, 2019;
  • Tell UK employees resident in an EU member state to start preparing documents in support of immigration applications, for example: copies of passport data pages, marriage and birth certificates for accompanying family members, employment contracts or assignment letters, CV/resume, current job description, educational certificates, police clearance certificates, rental contract, proof of health insurance and payslips;
  • If possible, bring any UK to EU move start dates forward to before March 29, 2019;
  • Be prepared for possible lengthy immigration application requirements for UK nationals moving to the EU, from March 29, 2019 if we reach a “No Deal” situation;

Please note that this is general information only and not intended as advice on a specific matter. Please feel free to contact Fakhoury Global Immigration directly with questions exclusive to your situation. This news alert may have been prepared using information from Peregrine Immigration Management, which is licensed to Fakhoury Global Immigration.