To recap, the UK has agreed a Withdrawal Agreement in principle with the EU and the date for the UK to leave the EU has been extended until 31 January 2020.
Although the immediate concern about a no deal Brexit on 31 October 2019 has passed, as the forthcoming election fast approaches, European nationals, their family members and employers are now considering the possibility of Brexit taking place on 31 January 2020 instead.
There is still considerable continuing uncertainty. However, the position in relation to those EEA and Swiss nationals and their family members who are already in the UK by Brexit day (whenever that is) remains the same whether there is a deal or no deal Brexit. This is summarised below.
EEA and Swiss nationals in the UK by Brexit day – the EU Settlement Scheme
This Scheme will continue to apply in relation to those EEA and Swiss nationals and their family members who are already living in the UK by the date on which the UK leaves the EU. Under the Scheme they must apply by a specified deadline to obtain either settled or pre-settled status in order to continue to live and work in the UK.
- Leaving the EU with a deal - if there is a deal, EEA and Swiss nationals and their family members will have until 30 June 2021 to apply under the EU Settlement Scheme.
- Leaving the EU with no deal - if the UK leaves the EU with no deal, EEA and Swiss nationals and their family members will have until 31 December 2020 to apply under the EU Settlement Scheme.
EEA and Swiss nationals and family members arriving in the UK after Brexit day
- If there is a deal, EEA and Swiss nationals will continue to be able to come to the UK after Brexit until 31 December 2020 and they will be able to apply for pre-settled status under the EU Settlement Scheme. The deadline to apply under the Scheme is 30 June 2021. Once they have been in the UK continuously for 5 years they will be able to apply for settled status.
- After Brexit day, even if there is no deal, EEA and Swiss nationals and family members will be able to continue to come to the UK to live, work and study as they do now until 31 December 2020 but they will not be eligible to apply under the EU Settlement Scheme. If they wish to continue to live, work or study in the UK after 31 December 2020 they must apply for European Temporary Leave to Remain (Euro TLR) by 31 December 2020. This leave is valid for three years.
- EEA and Swiss nationals wishing to stay in the UK after their three year Euro TLR expires will need to apply to switch into a suitable immigration category under the future immigration system or they will have to leave the UK.
EU Settlement Scheme - how many people have applied so far?
In the period up 31 October 2019 the Home Office announced that 2.4 million applications under the EU Settlement Scheme have been received and that just over 1.9 million applications have been concluded. Of these, 60% were granted settled status and 40% were granted pre-settled status. Nearly 600,000 applications were received in October 2019 – no doubt as European nationals feared a no deal Brexit on 31 October 2019.
However, it appears that these published statistics are misleading as thousands of repeat applications from European nationals, who had already been granted pre-settled status but re-applied to obtain settled status, have been double-counted in the total number of applications the Home Office has received. It is therefore unclear how many European nationals and their family members still have to apply under the EU Settlement Scheme.
All of the above assumes that the Conservatives win the forthcoming election with a workable majority. If that is the not the case, the position in relation to both Brexit and the future immigration system is likely to be very different. Labour has promised another referendum on whether to leave the EU. Even if the majority vote in favour of Brexit and the UK leaves the EU it is possible that the new immigration system under Labour may offer some preferential treatment to European nationals and that there would be closer ties to Europe than the Conservatives are proposing. Labour would also grant European nationals already in the UK the automatic right to continue living in the UK without needing to apply under the EU Settlement Scheme. The Liberal Democrats have vowed that they will revoke Article 50 and that the UK would not leave the EU. In that case free movement for European nationals would continue.