With the Article 50 deadline fast approaching, there has been growing concern that the UK will leave the European Union with “no deal”. If no withdrawal agreement making provision for a transition period is reached by 29 March 2019, the UK will fall out of the EU without an agreement detailing the terms of its exit and easing its passage out of the Union. The Latvian foreign minister has suggested the odds of a no deal Brexit are 50/50. Our own trade secretary, Liam Fox, leans 60/40 in favour of no deal (although Paddy Power is more optimistic).

It’s almost like a game show. The suspense is palpable. Will the UK ‘beat’ the mysterious (but ultimately fictitious) enemy lurking in the shadows? Or will the Banker the EU emerge victorious? If only Noel Edmonds was standing by our side to help us through it all. The UK negotiating team missed a trick there: despite his often bizarre spiritual beliefs, Mr Edmonds is still more grounded in reality than many of the Brexiteers pushing the no deal option.

Unfortunately, this isn’t a game show. It’s reality. With reports that the government is stockpiling food and medicine and warnings that planes could be grounded, many EU citizens — whose legal status in the UK depends on the membership due to expire on 29 March — will be asking themselves “is it now time to start panicking?”.

EU free movement law to be rolled over

Would EU citizens in the UK become unlawful immigrants overnight after 29 March 2019 if there were no deal?

Thankfully, the answer is no. Parliament has already ensured interim protection through the European Withdrawal Act 2018. EU nationals are entitled to reside in the UK by virtue of EU free movement law, which is implemented in the UK through the Immigration (European Economic Area) Regulations 2016. Even if there is no deal, these domestic regulations will not disappear overnight. They will remain on the statue book thanks to section 2 of the European Withdrawal Act 2018.

As such, regardless of what happens with the negotiations, EU (and EEA) nationals will continue to be able to live and work in the UK under domestic law even after EU free movement law comes to an end. The default is the status quo, not illegality.

Ending our membership with no deal would, however, mean that the immigration status of these citizens is no longer protected by EU law. It would be up to the government, through Parliament, to decide if (and when) to repeal the current regulations. Conveniently leaked Cabinet papers have indicated that, in the event of a no deal Brexit, the government proposes to “take the moral high ground” and allow EU citizens to stay in the UK. Although not an official government announcement, this is in keeping with the tone of ministerial pronouncements since the referendum: EU citizens already here will be able to stay. That means that the existing rules guaranteeing the status of EU citizens would be replaced, not simply abolished.

As CJ highlighted on the blog last week: 

…to solemnly pledge that millions of people would not be removed en masse from the UK — and to think that this is taking the “moral high ground” — misses the point. Nobody thinks that deporting 5% of the UK population is desirable or remotely feasible. The issue is the terms and conditions on which EU residents will be able to stay.

So what will the terms and conditions be? In my view, it is incredibly unlikely the government will decide to design a new system from scratch, and then take this to Parliament to be passed into law. The government will most likely implement the “settled status” scheme that the Home Office has been working on for the last two years.

Settled status scheme likely to be rolled out

Chris Desira and Nath Gbikpi have both previously covered this new scheme in details on this blog, with Chris noting that it provides “clarity for the majority of EU citizens currently in the UK”. It is far from perfect, as demonstrated by the unanswered questions highlighted by the campaign group the3million. But it will allow most EU citizens, and their non-EU family members, to remain in the UK permanently after Brexit.

The settled status scheme covers only EU nationals. The exact position of citizens of Liechtenstein, Iceland, Norway, and Switzerland, who are also entitled to live in the UK by virtue of the Immigration (European Economic Area) Regulations 2016, remains unclear. But the government has said that “talks with all four states are progressing well and pending final agreement being reached with each on the detail of the arrangements, the Government intends that the scheme… will be open to other EEA citizens and Swiss citizens (and their family members) on a similar basis as for EU citizens”.

Although the settled status scheme was developed following the UK’s agreement with the EU in December 2017, it is not dependent on a deal being made before 29 March 2019. It can be implemented in domestic law with or without an agreement. In fact, the Immigration Rules have already been changed to allow a pilot of the settled status scheme that began on 28 August.

If there is no deal the government could, in theory, renege on the commitments made to EU citizens over the last two years. Without the constraints of the draft Withdrawal Agreement the system could be fundamentally different to what is currently envisaged. However, any new system will need Parliamentary approval. Parliament is unlikely to agree to anything which offers less protection than the current proposals and would (hopefully) prevent any significant regression.

So in practice, deal or no deal, the post-Brexit system for granting status to the 3.5 million EU citizens in the UK is likely to proceed more or less as planned.