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How Does the Latest Immigration Bill Fit into the Government’s Many Different Brexit Proposals for EU Citizens?
The House of Commons yesterday approved an Immigration Bill that will theoretically end free movement rights but which does little to shed light on the current confusion surrounding its Brexit plans for EU citizens.
The Immigration and Social Security Co-ordination Bill is a short document intended to simply abolish the special status currently enjoyed by EEA citizens and their families in the UK by virtue of our position within the EU.
The Immigration Bill is the latest in a string of documents published by the government, which have left many bewildered and uncertain about what the future holds.
A large part of the problem is the ongoing uncertainty around Brexit itself meaning all contingencies have to be catered for. The other issue is that, regardless of whether we leave Brexit with or without a deal, any changes will need to be introduced in stages.
The result has been an array of often vague and contradictory proposals designed to deal with a host of different situations.
This is a brief summary of the key proposals so far and how they fit into the overall framework.
SCENARIO A: IF WE LEAVE THE EU WITH A DEAL
STAGE 1: ‘Full’ Settlement Scheme – until 31 December 2020
- This is the transitional scheme for EEA citizens and certain family members in the event of a negotiated departure from the EU.
- It basically allows EEA citizens and family members to continue to move to the UK any time up to 31 December 2020.
- EEA citizens and family members living in the UK by that date will have until 30 June 2021 to apply for residence documentation confirming their status. If they have not obtained documentation by this date, they will not be allowed to stay.
- They will be able to apply for pre-settled status if they have lived here for less than five years, and settled status if they have lived here for five years or more. There will be no need to prove employment, self-employment, study etc.
- Already in force, appears in Appendix EU of the Immigration Rules.
STAGE 2: White Paper on new ‘Skills-Based Immigration System’ – after 2020
- This White Paper published 19 December 2018 sets out government’s proposals for what the position might be for EU citizens after the transitional period covered by the Settlement Scheme.
- Would place EU citizens in the same position as non-EU citizens and generally overhaul the UK’s work visa scheme.
- Proposes removing the annual cap on the number of work visas issued, widening the skills threshold to include people with lower level qualifications and ending the requirement for employers to prove there is no one already in the UK who can do the job.
- Proposes a limited number of temporary short-term work visas lasting for just 12 months, available only to people from “low-risk” countries, with no skill requirement at all.
- Preliminary proposals only – no bill drafted as yet.
SCENARIO B: IF WE LEAVE THE EU WITHOUT A DEAL
STAGE 1: ‘Restricted’ form of Settlement Scheme – until 29 March 2019
- This is outlined in the government’s Policy Paper of 6 December 2019: ‘Citizens’ Rights – EU citizens in the UK and UK nationals in the EU’
- EU citizens and certain family members arriving in the UK by 29 March 2019 will be eligible to stay in the UK by obtaining settled or pre-settled status as above.
- They must apply for such documentation by 31 December 2020.
STAGE 2: Transitional form of ‘Temporary Leave’ – from 30 March 2019
- Outlined in the government’s policy paper of 28 January 2019, entitled ‘Immigration from 30 March 2019 if there is no Deal’
- EU citizens arriving after this date will be able to enter the UK for a three-month period without any need for documentation.
- Those wishing to stay for more than three months will need to apply for a temporary form of leave to remain lasting for up to three years. This will not lead to the right to remain permanently and is for transitional purposes only.
STAGE 3: White Paper on new ‘Skills-Based Immigration System’ – after STAGE 2
- The government’s plans for the future will be the same as STAGE 2 if we leave the EU with a deal. The only difference is it is not clear when exactly these will happen.
WHERE DOES THE PARLIAMENTARY BILL FIT IN?
The Immigration and Social Security Co-ordination Bill is intended to do nothing more than repeal all parts of UK law that currently grant EU citizens special immigration status.
Until now, EEA citizens’ rights have largely been incorporated into UK law through a separate set of provisions, known as the EEA Regulations. These will be repealed by the new bill, which also amends a variety of other immigration laws in order to end free movement.
The bill thus paves the way for most of the new proposals set out above, as these cannot be fully implemented so long as free movement continues to exist in UK law.
However, in practical terms, the Immigration Bill will make no immediate difference to EU citizens living in the UK. It sets out how the government plans to remove free movement rights from UK law but not when that will happen or what the successor scheme will look like.
The actual date could be as early as 30 March 2019 if we leave the EU without a deal. Alternatively, the bill might not come into force until 1 January 2021, in what seems to be the increasingly remote scenario of Theresa May’s Withdrawal Agreement being approved. If that were to happen, the current EEA Regulations would continue to run in parallel with the full Settlement Scheme until that time.
If the Immigration and Social Security Co-ordination Bill is to come into force before 30 March 2019, there is very little time left. It now passes to committee stage, which reports back in early March, followed by further readings in the House of Commons and House of Lords.
Karma is an Associate Solicitor in our Immigration department, where she undertakes work in a broad range of fields.
Chambers & Partners recommends Karma as an ‘Associate to Watch’ in its 2017 rankings, noting that she “stands out for her ability in complex international surrogacy and partnership cases.”
Karma qualified as a solicitor in 2012, after completing her training contract at Fisher Meredith, where she remained until its merger with Bishop & Sewell. She previously worked part-time at Birnberg Peirce’s immigration team while completing her legal studies, and holds an LLM in International Human Rights Law from the LSE. Before embarking on her legal career, Karma lived in Italy for many years, where she worked as a newswire journalist and translator.