Brexit – EEA immigration rights – where are we?

The idea of Brexit seemed a simple one: The People (or some of them at any rate) would be able to vote in a referendum to decide whether the UK should remain in the EU or leave. Subsequently the Government would implement or abide by The People’s decision.

But it became a great deal more complicated than that. The Government has discovered – and increasingly so as events have moved on – that it cannot act freely without agreement from Parliament. But Parliament is fiercely divided and, to make it worse, the Government also seems to be fiercely divided. Cabinet Ministers keep resigning because they are a bit fed up.

The UK is supposed to leave the EU on 29 March 2019 but Parliament has not agreed on what terms. There is as yet no Deal which Parliament approves of but, on the other hand, Parliament does not approve of leaving without a Deal either. It might be that the Government will obtain an extension beyond 29 March from the EU to give it more time to work things out.

And then there is the possibility of a second referendum, which might overturn the result of the first one, in which case the UK will stay in the EU after all.

It seems fair to say that the whole thing is a tangled political mess. And where does it leave European migrants and their family members?

Well, information and policies issued by the Home Office have all been based on the premise that the UK will leave on 29 March. This at least has the virtue of relatively simplicity, and the Home Office came up with a reasonable and structured scheme for EEA nationals and their non-EEA family members whereby they had plenty of time to adjust to Brexit and their immigration rights would be protected beyond Brexit Day.

But recently, as political events have hotted up, the Home Office has started issuing immigration policies about No Deal Brexit – ie the UK leaves the EU without a Deal having been agreed. No Deal must be a possibility and – depending on who you ask – more likely or less likely to happen. At any rate, we do need to understand the Home Office’s plans about it in case it does.

Under the previously-stated policy (evidently created under the understanding that there would be a Deal) those affected could stay in the UK beyond Brexit Day and still accumulate time towards settlement. A new scheme has been created called the EU Settlement Scheme as well as new nomenclature (“settled status” and “pre-settled status”) and migrants had until 30 June 2021 to apply for the new status.

But under the No Deal scenario the deadline is different – 31 December 2020 – and some of the other rules are more stringent. Most crucially, EEA nationals must have entered the UK by 29 March 2019 or been previously living in the UK before that date in order to apply for the new European status. If they enter after that date and they wish to stay in the UK for more than three months they will have to apply for a different kind of status called “European Temporary Leave to Remain”, which would be granted for three years.

But European Temporary Leave to Remain would not a very strong immigration status. It would not lead to settlement and would not be “extendable” – which would appear to mean that once that leave has finished migrants are going to have to apply for something else if you want to stay in the UK.

So there we have it – these are the Home Office’s plans for No Deal. If we have a Deal or a Brexit extension or a second referendum then we will not need to worry about it. In the Brexit extension scenario then things presumably will just be put further on hold. If we have a second referendum – well, who knows?

In any event, for those Europeans or family members who are outside the UK and have not lived previously lived in the UK but who want to come to the UK the writing is on the wall. In the event of No Deal they will be severely disadvantaged if they are not already in the UK.

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