Brexit update - February 2019

23 February 2019
This Brexit thing felt as if it was going on for ever. It all got very dramatic and, from some people’s point of view, no doubt very boring. Politicians have been resigning and forming new political parties left, right and centre (well, right and centre at any rate).

But at least there was always the understanding that on 29 March 2019 we would get some closure on this: this would be Brexit Day - the day that the UK left the EU.

But this understanding is no longer necessarily valid. Rather like some softer version of the events leading up to the English civil wars and the eventual destruction of King Charles I, Parliament has seized a large part of the political agenda and the Government no longer has much control over it.

It is often said that Parliament has no appetite for a No Deal Brexit. It is not quite certain what it does have an appetite for, but not that at any rate.

If the Government’s Deal on Brexit is not approved by Parliament (surely a real possibility) then Parliament may try and force the Government to ask the EU for an extension of Brexit Day, and very possibly they might grant it.

So it looks as though the Brexit Saga may drag on for some while yet.

In the meantime, and irrespective of all these grand political events, people like us have to advise our clients about their rights and possibilities.

Under Plan A (ie if Brexit goes ahead as planned) the Home Office have created the EU Settlement Scheme. This is quite a generous scheme which enables EEA nationals and their family members to apply for a new European status, which will either be “Non-Settled Status” or “Settled Status”.

Non-settled status will also be known as “Limited Leave to Remain” and settled status will also be known as “Indefinite Leave to Remain” - which brings the nomenclature into line with that of British law and the Immigration Rules. This underlines the reality that the new statuses are statuses under British law, not European law.

The idea is that all affected migrants must eventually acquire leave under the new scheme, so those who hold leave under the old European scheme must transfer their leave to leave under the new British scheme - free of charge.

And there is no big hurry about this: the deadline to apply would be 30 June 2021, and current EEA immigration rights will continue up until 2021. A nice gentle approach which would engender a high degree of continuity.

But recently the Home Office has become alert to the possibility - albeit not necessarily a very strong one - of a No Deal Brexit and it has made contingency plans for this in the immigration field (we might call this Plan B).

In the event of No Deal things become a lot more difficult. EEA nationals and family members who enter the UK after 29 March 2019 will suddenly find that they do not have the advantages that they did previously. They will not be able to apply under the EU Settlement Scheme and, if they wish to stay here for longer than three months, they should apply for leave under another new scheme called “European Temporary Leave to Remain”.

This does not sound a very solid status, and it isn’t. It will not be renewable and does not lead to settlement. If such a person wishes to remain for longer in the UK after their Temporary Leave is finished they will have to apply for leave under whatever visa schemes exist at the time, ie under British law and the Immigration Rules.

And if there is an extension to Brexit then we will enter what we might call Plan C territory, and anything could happen. It might even lead to a second referendum, in which case Brexit could be reversed and we can go back to where we started.

But one thing emerges clearly: if there is No Deal then those who are affected who have not yet entered the UK will find themselves in difficulties. Such people might want to take appropriate steps just in case - against the odds - No Deal happens.


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