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Brexit delayed: what does it mean for lawyers?


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The United Kingdom is not now leaving the European Union at 11pm on 29 March 2019. Brexit fans can rest assured that the game is still afoot: it will just take place on 12 April, or 22 May, or some future date giving time for a Norway-style single market deal to be negotiated. It is quite likely that on the Day of Judgement, when the last dingdong of doom has clanged and faded from the last worthless rock hanging tideless in the last red and dying evening, there will be a communiqué from Brussels granting a further Brexit extension until 1 January 2295.

The delay breeds legal confusion. There are a number of technical changes related to Brexit that were due to come into force on 29/30 March 2019. Some of them still will, because they were tied to the actual date. Others were floating changes tied to the event of Brexit and are being put off until that event. The purpose of this post is to identify which is which.

Easier deportation for EU citizens — delayed

The Immigration, Nationality and Asylum (EU Exit) Regulations 2019 would make it easier to deport European citizens (including Turkish nationals). For crimes committed after the regulations come into force, the Secretary of State will be able to eject people where it is “conducive to the public good”. As to when they kick in:

These Regulations come into force on the later of exit day or the day after the day on which they are made.

“Exit day” in UK domestic law has just been changed, by virtue of other regulations rushed through Parliament, from 29 March 2019 to:

  • 22 May, provided that the Brexit deal is passed by Parliament no later than today
  • 12 April, if not

So no changes to the deportation rules just yet. The same goes for the various other measures that these regulations include, such as the end of the Dublin asylum transfer system.

Temporary admission for EU citizens if no deal — delayed

The Immigration (European Economic Area Nationals) (EU Exit) Order 2019 has now been made. Once in force, it will do two main things:

  • allow new arrivals from the EU into the country for an initial period of three months
  • makes some adjustment for the settled status scheme for existing EU residents, including allowing those temporarily abroad to apply from overseas

The first element of this was not due to come into effect until “the Immigration (European Economic Area) Regulations 2016 are revoked and free movement is brought to an end” anyway.

The bits to do with the EU settled status scheme will, however, come into force on 30 March 2019.

Settled status

Settlement Scheme launch — fixed

The settled status scheme opens fully to the public on 30 March 2019. An expanded version of Appendix EU, which contains the detailed rules for the scheme, goes into the Immigration Rules on the same date. Nath has outlined the changes in a previous post, but essentially they open the scheme to cover people who were not allowed to apply during the extensive pilot phase, such as:

  • EU citizens who have ID cards rather than passports
  • EU citizens living on the Isle of Man or Channel Islands
  • Citizens of Norway, Iceland, Liechtenstein and Switzerland
  • Surinder Singh families
  • Zambrano carers (from 1 May 2019)

From what we have heard from the Home Office, it is full speed ahead for the Settlement Scheme from 30 March despite the delay to Brexit.

Cut-off point — delayed

The Brexit delay does, however, have one consequence for the settled status scheme. The cut-off date by which EU citizens had to be living in the UK in order to apply to it has been pushed back. The Home Office settled status website has been quietly changed to say:

You must have started living in the UK by 31 December 2020 to apply (or by 12 April 2019 if the UK leaves the EU without a deal).

The government has also updated its no-deal policy paper on citizens’ rights: it now says that settled status will be open to all EU citizens living here by “exit day”, whenever that happens to be. It used to say 29 March 2019.

Oddly, the revised Appendix EU rules do not seem to reflect this. They say that settled status is only open to EU citizens who began living in the UK before a “specified date”. The specified date is defined as 31 December 2020 if the withdrawal agreement passes or 29 March 2019 if there is no deal on that date. There is nothing on what the specified date is if there is no deal on a later date, as is now possible.

That looks like merely a legal curiosity. The government’s public-facing information makes clear that EU citizens who arrives before any date of Brexit are covered by the Settlement Scheme. No doubt Appendix EU itself will be adjusted at some point.

Deadline — fixed

The deadline for settled status applications is still 30 June 2021, if there is a Brexit deal, or 31 December 2020 if there is no deal. Even though Brexit itself is not in motion, the clock has started ticking on the deadline.

Any other technical changes you can think of or want to know about? Let us know or leave a comment below.

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CJ McKinney

CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.