While the chances of a no-deal Brexit are growing increasingly slim, the Home Office have issued some changes to the immigration rules which will only come into play should the UK leave the EU without a deal.
Brandon Lewis, the Minister of State for Security and Deputy for EU Exit and No Deal Preparation, said this regarding these changes:
“The Government’s priority remains to leave the European Union on the basis of the draft Withdrawal Agreement reached on 17 October 2019. However, it is appropriate that we also continue to make the preparations necessary in the event that we leave without a deal.”
The changes in brief:
- Approved UK criminality and conduct thresholds of EEA citizens and their family members moving to the UK after Brexit must be met for increased security purposes.
- Certain types of family members of EEA citizens resident in the UK will be able to access the EU Settlement Scheme, and these family members can use previous UK residency that occurred before Brexit as part of the relevant five-year continuous period needed for settled status.
- Establishing the European Temporary Leave to Remain Scheme. This allows European citizens and their family members moving to the UK after Brexit to be able to lawfully reside in the UK beyond 1 January 2021. This enables them to obtain a UK immigration status so that they can continue living and working here for a temporary period after 2020
Deportation and the criminality thresholds:
The changes surrounding the use of UK criminality and conduct threshold essentially make it easier for the Home Office to deport people for more minor offences than what is allowed in EU law.
If an EU citizen living in the UK commits a crime, they can be deported in the following circumstances:
- If they have lived in the UK for less than five years, they can be deported only where their conduct represents a genuine, present and sufficiently serious threat affecting the fundamental interests of society.
- A person who has lived in the UK for five years or more and has acquired a right of permanent residence, then their conduct must present serious grounds of public policy and public security. In other words, their offending must be much more serious
- A person who has lived in the UK for ten years or more needs to show the highest threshold for removal: imperative grounds. This means that it is extremely difficult to deport them
When deporting anyone the decision maker must take into account the entire picture of the deportee’s life. This includes this such as age, state of health, family, economic situations, cultural integration, links to the country of origin and the possibility of rehabilitation.
The UK rules in this area are harsher than the EU rules. For example, there would be a fairly high chance that an EU citizen in the UK caught in possession of drugs and a knife would be deported under UK rules, but would be unlikely to be deported under EU rules.
It is important for Europeans living in the UK to be aware of these new thresholds, should a no deal Brexit occur.
Family members and Settled Status:
This information relates to the spouse, civil partner or durable partner of a European citizen, or anyone in the ascending or descending lines of the European citizen or the spouse or civil partner, so great-grandparents to great-grandchildren etc.
Should these family member move to the UK after Brexit to join a relative who is settled here, the time they have spent residing in the UK from entry can be counted towards the five-year residence period required to achieve settled status.
This is true as long as they make their application for pre-settled or settled status before 31 December 2020 (which is the deadline for all applications under the EU Settlement Scheme in a no-deal Brexit).
What if they miss the deadline?
If they miss it their residence period will begin from the date they re-joined their European family member. So they can still achieve settled status, but it will take more time.
The deadlines by which these family members will need to come to the UK to fall within the EU Settlement Scheme will be:
by 29 March 2022, where the relationship existed before Brexit and continues to exist when the application is made, in the case of spouses, civil partners, durable partners, children, parents and grandparents, and of children born overseas after Brexit; and
by 31 December 2020, where the relationship as a spouse, civil partner or durable partner was formed after Brexit and continues to exist when the application is made, or from other dependent relatives.
European Temporary Leave to Remain
It is important to stress that this will only become a reality in the event of a no-deal Brexit.
The European TLR will enable European citizens and their close family members who move to the UK for the first time to lawfully reside in the UK beyond 31 December 2020. It grants them 36 months (non-extendable) leave to remain.
If they want to stay longer they will have to apply and qualify under a new immigration system planned to be in place from 2021.
This is a free service and has been promised to be a simple online process. Of course, things are not always as easy as they could be so we will have to wait and see.
Again, this time spent on the temporary visa will count towards the final time requirement for full settlement.
So it is definitely worth applying for this as soon as possible, should a no-deal Brexit occur!
We understand that keeping up with these changes can be challenging. We are always here to help, so feel free to call us on 020 7928 0276 or email into firstname.lastname@example.org if you need any legal advice.
Explanatory memorandum of these new rules:
Statement of changes in Immigration Rules:
Electronic immigration network: