Update on EU citizens' rights post-Brexit 

10 January 2019

Government provides assurances for EU nationals in a 'no deal' scenario and opens scheme to public
The EU Settlement Scheme has been introduced to implement the Draft Withdrawal Agreement that the UK government has reached with the EU with regards to citizens’ rights after the UK leaves the EU on 29 March 2019. Since we reported on this, there have been several updates that local authorities need to be aware of, including what will happen in a 'no deal' scenario. 

(i) Rights of EU nationals in the UK in a ‘no deal’ scenario
If the Government and EU do not reach a deal by the date the UK leaves the EU, then the Draft Withdrawal Agreement will not apply. The Government has confirmed in a confirmed that in this situation, EU nationals and their family members will be able to apply to remain in the UK under the EU Settlement Scheme. 

However, there will be some changes, including the qualifying date and deadline to apply. Under arrangements implementing the Draft Withdrawal Agreement, EU nationals and their family members who are resident in the UK by 31 December 2020 will need to apply by 30 June 2021. In the event of no deal, EU nationals and their family members living in the UK by 29 March 2019 will be eligible to apply and they must do so by 30 December 2020, so there will not be a six-month ‘grace period’. Other changes are outlined in our factsheet

(ii) EU Settlement Scheme will open to the public from 21 January 2019

Two pilots involving specific groups of EU nationals have taken place and are now closed. The scheme will open to the following members of the public from 21 January 2019:

  • An EU national who has a valid passport
  • A non-EU national family member who has an EEA residence card or EEA permanent residence card that was issued following an application made on or after 6 April 2015

​The Home Office has confirmed that the scheme will be open by 30 March 2019 for other people who will need to apply, for example, an EU national who has an ID card rather than national passport.

(iii) Non-EU EEA and Swiss nationals
The position of non-EU members of the EEA (Iceland, Norway and Lichtenstein) and Switzerland has now been confirmed, and citizens of those countries will be able to apply to stay in the UK under the EU Settlement Scheme. For the purpose of this article, references to ‘EU nationals’ includes citizens of these countries. 

(iv) Providing advice on the EU Settlement Scheme
The Office of the Immigration Services Commissioner (OISC) has published information about what types of advice will fall under the scope of immigration regulation and is clear that providing advice directly to an individual about whether they meet the EU Settlement Scheme’s requirements will constitute regulated immigration advice. 

Local authority practitioners will therefore be limited to giving out general information to residents, signposting to information about the scheme and to legal advice providers, and helping people engaged with council services, such as those receiving​ social services' support, to gather documentary evidence for their applications.   

Local authorities need to ensure that VCS organisations are aware of the EU Settlement Scheme grant fund, which may be used to fund immigration advice provision, and is open for applications until 1 February 2019. 
(v) Immigration system after free movement ends 
The Government has published a white paper outlining the immigration regime that will apply after free movement ends. The free movement rights of EU nationals to enter and reside in the UK are set out in the Immigration (European Economic Area) Regulations 2016, and will be preserved until they are repealed by Parliament. Once these regulations have been repealed, EU nationals will be subject to entry and residence requirements that are set out under the immigration laws that apply to non-EU nationals, including the Immigration Rules. 

Under the Draft Withdrawal Agreement, free movement is due to end on 31 December 2020, and new Immigration Rules will apply to EU nationals from 1 January 2021. In the event of a 'no deal' scenario, the Government has not specified when the free movement rights (as set out in the Immigration (European Economic Area) Regulations 2016) will end, as these will continue to apply until Parliament repeals them.​ If there is a transition period, which is likely, then it is currently unclear what the future rights for EU nationals who arrive in the​ UK after 29 March 2019 will be when free movement ends and new Immigration Rules apply.
Further information
The changes will impact on local authority duties to provide accommodation and financial assistance to safeguard the welfare of a vulnerable​ EU adult or family (sometimes referred to as 'No Recourse to Public Funds (NRPF) support').​​ Local authorities are advised to refer to our information about this. 

Our factsheet​ has been updated to reflect the current position and sets out what local authorities may need to consider doing to help EU residents secure their status.

There still remain many outstanding questions regarding the EU Settlement Scheme. We have already raised local authority concerns and questions with the Home Office, and have updated these in light of recent developments.

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