The publication on 6 December 2018 of the Department for Exiting the EU’s no-deal paper on citizens’ rights came as a surprise to many, like us, who had been lulled into a false sense of security over this aspect of the Brexit negotiations.
The UK government has repeatedly denied that it would use citizens’ rights as a bargaining chip in its talks with the Commission, and has previously indicated that it would act unilaterally to protect the status of EU citizens in the event of a no-deal conclusion to the Brexit process. This paper explodes this myth, and brings the issue of citizens’ rights back into the foreground. The government has been accused of watering down these rights at the eleventh hour.
The DExEU’s paper is a stark reminder indeed of just how bad no-deal will be, for EU citizens and for the employers who rely on them and their families.
The same settled status scheme, as set out in the Withdrawal Agreement (WA) and already being piloted in the UK’s Immigration Rules, will come into force for all EU nationals. Crucially, though, Brexit Day on 29 March 2019 will be the cut-off for eligibility, rather than 31 December 2020, the end of the proposed transitional period under the WA. It will also be mandatory for EU citizens to hold registration documents by 31 December 2020, not 30 June 2021 as per the WA. From 1 January 2021 EU nationals will no longer be able to rely on their passport or national ID card as proof of entitlement to reside and work in the UK. Family members would only be permitted to join them in the UK until 31 March 2022, not indefinitely as would be the case under the WA.
The Paper goes on to talk about the UK’s new immigration system for EU citizens from 1 January 2021. EU nationals would no longer be able to travel to the UK holding just a national identity card, effectively bringing them into line with all non-EU travellers. A new category of EU citizen – the “frontier worker” – will be given special treatment under new immigration rules.
What is less clear – indeed, completely unclear – is the status of EU nationals arriving in the UK between 30 March 2019 and the introduction of ‘new’ immigration rules on 1 January 2021; there is no reference to transitional arrangements, meaning such individuals will fall squarely between two stools. By default, would they have to seek leave under existing non-EU rules? The strain this would place on, for example, the Tier 2 sponsored work category with its arbitrary numerical cap is likely to be intolerable. Lower-skilled workers would have zero chance of entry, unless the government were to extend Tier 5 youth mobility to EU states.
The uncertainty introduced by this paper is likely to be considerable; perhaps intentionally so, in view of the government’s need to sell the WA to a sceptical parliament and electorate.