Brexit: what a delay means for EU citizens and the settled status scheme

Published: 10 May 2019 at 14:47

UK and EU flags fading together in the middle

VIEWPOINT: What extended dates for Brexit could mean for citizens unsure of their status

Amid the ongoing Brexit stalemate, the Home Office is pushing ahead with its plan for EU citizens living in the UK to register for a new 'settled status'. It has launched a new nationwide marketing campaign to encourage them to apply for the EU Settlement Scheme before its full roll-out on 30 March.

All this is happening despite uncertainty over what the date of Brexit will actually be. At a crunch EU summit in Brussels on March 21, the EU agreed to grant the UK two possible extensions of varying length to the article 50 negotiating period which governs the Brexit process.

If MPs in Westminster don’t approve the Brexit withdrawal agreement by March 29, then the Brexit date will be extended until April 12. If they do approve it, the extension will be until May 22. Yet the option to revoke the article 50 notification period – or cancel Brexit – and the option for a long extension remain possible, should the UK decide to hold European Parliament elections.

There are estimated to be over 3m EU citizens living in the UK and around 1.3m British citizens living in other EU countries. So what do the extended dates mean for citizens unsure of their status once the UK leaves the EU?

After Brexit, the rights of EU citizens in the UK will be protected either under national law or by the existing international treaties the UK has signed, such as the European Convention of Human Rights. The rights of UK nationals elsewhere in the EU will fall back on the protections provided by each country and EU legislation on the rights of third country nationals, such as the long term residents directive. This setup is likely to remain in place until the UK and the EU agree a future international treaty upon which their relationship will be based – when the second stage of Brexit is complete.

EU citizens in the UK

The rights currently guaranteed to mobile EU citizens and their families by EU law are wide ranging and often strongly depend on whether they are economically active. These include the right to work, study and to undertake self-employment activity. They also include the rights to pensions and healthcare, and the possibility to draw on social welfare benefits.

If the current withdrawal agreement is not approved by MPs, then EU law will cease to apply in the UK on April 12 if it leaves the bloc without a deal. So, it’s likely that most of these rights will depend on whether a person has the right to live legally in the UK. As of today, much uncertainty remains regarding the precise details of some rights, for example EU citizens’ access to social housing and homelessness assistance or benefits and pensions.

The Government’s principle mechanism for determining the right of residence for non-Irish EU citizens after Brexit is the settled status scheme, which will be launched on March 30. It doesn’t cover Irish nationals, who will be protected in the same way as the UK nationals.

According to the scheme’s official guidance, if the UK leaves the EU without a deal, EU citizens will have until December 31, 2020 to register. If MPs do agree the Brexit deal, the timeframe for registration would be longer: June 30, 2021. Those who don’t apply by these deadlines may risk deportation from the UK. This means that despite the uncertainty over when Brexit will actually happen, EU citizens are still encouraged to apply for settled status. They can seek free advice on how to do this.

In a no-deal scenario, EU citizens in the UK will find it more difficult to challenge administrative immigration decisions in relation to settled status applications, especially given the UK’s extremely complex current immigration rules. This is because the Immigration and Social Security Coordination Bill, currently going through parliament, doesn’t provide for a right to appeal to a tribunal in such circumstances.

In contrast, if a deal is agreed, the right to appeal decision is provided for in the withdrawal agreement, ensuring access to justice and better protection for some of the most vulnerable EU citizens at risk. These include – among others – children, carers, women, people who believe they are ineligible, or who will struggle to submit an application due to language, age, disability or digital literacy.

British citizens in the EU

Despite calls from citizens, the EU has refused to act separately to safeguard the rights of EU citizens in a no-deal scenario. As with the UK, many EU countries will require UK nationals to complete temporary registration with the authorities, in order for their residence to be legally recognised.

The UK Foreign and Commonwealth Office published guidance for UK nationals living in the EU which explains what residence rules will apply in each member state, and the Department for Work and Pensions has drafted special guidance on benefits and pensions. The European Commission also recently published several factsheets to help EU citizens in the UK and UK nationals in the EU plan their life in the case of no deal.

Despite this, there are many EU rights that are awarded to anyone living in an EU member state, regardless of their citizenship. These include consumer protection, workers’ rights or environmental protection, which award common guarantees that will continue to be applied to UK nationals living in the EU after Brexit.

For many, the uncertainty regarding their rights will remain. Once Brexit takes place, the next step will be to negotiate the future relationship between the UK and the EU, which may create a different legal landscape for cross-border rights. But all this will depend on the international treaty negotiated in the second stage of the Brexit process.

Egle Dagilyte, Senior Lecturer in Law




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