The EU Settlement Scheme designed to protect the rights of EU, EEA and Swiss citizens and their families already resident in the UK by 31 December 2020 is based on the citizens’ rights section of the UK government’s Withdrawal Agreement with the EU. However, the Withdrawal Agreement has been considered and rejected by the House of Commons on three occasions, the EU has consistently said it cannot be renegotiated and new Prime Minister Boris Johnson has promised that the UK will leave the EU on 31 October 2019 “no ifs, no buts”. So now what?

Current Home  Office guidance states that in a no-deal scenario EU, EEA and Swiss applicants will still be eligible to apply under the Settlement Scheme providing they are living in the UK before it leaves the EU and that they apply before 31 December 2020.

If the UK leaves the EU without a deal, an Immigration Bill drafted under Theresa May’s government, would enable the Home Office to bring free movement to an end from the UK’s exit date. To avoid a deeply undesirable immigration ‘cliff-edge’ until a new immigration system could be put in place, under current plans EU, EEA and Swiss citizens and their family members arriving in the UK after exit date but on or before 31 December 2020 would be subject to temporary transitional arrangements. Under these  arrangements, those coming to the UK for short visits (work-related or otherwise) would be able to enter the UK as they can now and stay for up to three months for each entry. EU, EEA and Swiss citizens who wish to stay for longer would need to apply to the Home Office for EU temporary leave to remain within three months of arrival, giving 36 months’ permission to live, work and study in the UK. Those who wish to stay beyond this period would then need to apply under the UK’s future immigration system which is expected to be introduced from January 2021 (though also see further comment below).

The Home Office has also advised affected UK employers that there will be no need to check retrospectively the status of EU, EEA or Swiss employees who began employment before 1 January 2021 nor to differentiate between those who arrived before or after the UK leaves the EU, in the event of no deal.

However, over the weekend reports have indicated that Home Secretary Priti Patel is seeking to introduce a new immigration system to take effect immediately from the UK’s exit date in the event of no-deal, removing the concept of a transitional ‘free movement’ period until 31 December 2020 and thereby creating the almighty immigration cliff-edge that pretty much everyone has agreed from the very start of Brexit is to be avoided at any cost.

Given the very short timeframe to plan for and introduce such a system before 31 October 2019 (assuming the UK’s exit on that date), it may be that this is just further desperate posturing to persuade the EU to make concessions on the Withdrawal Agreement.  It is certainly hard to see it as a considered policy proposal.

Even if a new system can be introduced in time, it would not affect the eligibility of EU, EEA and Swiss citizens and their families already resident in the UK by 31 October 2019 to apply for status under the EU Settlement Scheme, providing that they do so before 31 December 2020. Nonetheless, as a precaution in the event of no-deal, they should consider obtaining status under the Settlement Scheme before 31 October 2019 if they intend to travel outside the UK after that date, so as to reduce difficulties on re-entry in having to prove their prior UK residence by some other means.  At the same time, EU, EEA and Swiss citizens and their families intending to relocate to the UK for work after 31 October 2019 should not for now assume that in the event of no-deal they will be able to do so without prior immigration permission.

For further guidance please see our Brexit FAQs or contact Annabel Mace, Partner and Head of UK Immigration.