19th November 2018

Brexit Latest – The draft Withdrawal Agreement with regards to Citizens’ rights and immigration

On the 14th November, the British Government and the EU published details of the eagerly awaited draft agreement on the United Kingdom’s (UK’s) withdrawal from the European Union (EU).

Although this document is not the final version and may be subject to changes over the coming months, the 585 pages set out the Withdrawal Agreement, frequently referred to as the divorce which follows more than a year of negotiations.  An important part the document sets out citizens’ rights of EU nationals in the UK and UK citizens residing in the EU which is the focus of this briefing.

Thankfully, there are no surprises with regards to the content of the draft, as it builds on the earlier proposals agreed between the UK and EU on citizens’ rights. There do however remain several areas yet to be resolved and the final agreement requires ratification by the UK, EU and each member state which may result in changes.

What’s been agreed?

Since work began on the UK’s withdrawal from the EU, both the Government and the EU have communicated that one of their priorities was to secure the rights of EU nationals residing in the UK and UK citizens living in other EU member states.  There had been early reports that any deal would result in UK citizens living in other EU countries getting less rights than their counterparts living in the UK, however crucially in the main, reciprocal rights appear to have been agreed.

The agreement in summary:

The Transition Period

The ‘transition period’, also known as the ‘implementation period’, is set to run from the date that the UK officially withdraws from the UK on 29th March 2019 until 31st December 2020. Essentially during this time there will be very few changes to citizens’ rights. The Withdrawal Agreement states that the transition period can be extended, but only once.

Rights of EU Citizens to reside in the UK

  • EU citizens and their qualifying family members resident in the UK for five years by 31st December 2020 will be able to apply to settle permanently.
  • Individuals who have resided in the UK for less than 5 years or are yet to arrive but will do so before the end of the transition period, currently 31st December 2020 may apply for settled status following 5 years residence.
  • Immediate family members (spouses, civil and unmarried partners, dependant children and grandparents) of EU citizens will be able to join the EU citizen in the UK after 31st December 2020 providing that the relationship existed before this date.
  • Unlike rules in place for other UK immigration categories, EU nationals with permanent residence in the UK will be permitted to be absent for up to 5 years before losing their status, rather than the usual 2 years.

Rights of UK Citizens to reside in the EU

  • Reciprocal arrangements of the above have been agreed for UK nationals residing in EU member states. However, the agreement does not go as far as to confirm that immediate family members may join the UK national after the end of the transition period, 31st December 2020 unlike their counterparts.
  • Currently third country nationals with permanent residence in one EU member state have the right to reside in another member state as per Council Directive 2003/109/EC. It remains uncertain if the same will apply to qualifying British nationals, who following the UK’s exit from the EU will themselves become third country nationals.

Future mobility between the UK and EU

The EU’s proposal

In addition to the Withdrawal Agreement, the EU published details of their intention to allow visa-free travel to UK citizens following the UK’s withdrawal from the EU.  They propose that visas will not be required for short stays of up to 90 days in any 180 day period to all Schengen countries, the four Schengen associated States (Iceland, Liechtenstein, Norway and Switzerland) and to Romania Bulgaria, Croatia and Cyprus who are not yet full members of Schengen.

The above proposals are billed to be implemented at the end of the transition period if the Withdrawal Agreement is ratified.  If no deal is reached, these arrangements are set to apply on 30th March 2019, the date that the UK will withdraw from the EU.

The document indicates that visa-free travel arrangements will be reciprocal for EU nationals intending to travel to the UK for short periods, for example certain business trips and tourism.

The UK’s Future Relationship with the EU

The UK Government also published a document detailing their agreement with the EU for the future relationship between the parties following the  withdrawal.  This document also talks about the reciprocal visa-free travel for UK/EU nationals for the purposes of short visits.

Our Assessment

Visa-free travel between the UK and EU for short visits will no doubt be welcome news to businesses in the UK.  However, there are likely to be restrictions on the activities individuals are permitted to undertake whilst in the UK and we can expect rules like those currently applicable to other non-EU nationals to apply, for example visitors from the USA.

If indeed truly reciprocal arrangements are in place, this would result in EU nationals being treated differently to other visitors to the UK as the current rules permit visitors to remain in the UK for 180 days, rather than the 90 days suggested by the EU.  This would be contrary to the Migration Advisory Committee’s (MAC’s) recent recommendations that EU nationals should not be treated any differently to other nationalities after the UK’s withdrawal from the UK.  The immigration rules would also require updating to reflect this change in duration and any implementation of this is likely to cause confusion for officials, businesses and individuals alike.  It is therefore our assessment that visitors, regardless of nationality may be permitted to stay for 180 days, providing they meet the applicable requirements.

Conclusion

There are many more steps before we have a clear road-map of what lies ahead following the UK’s exit from the EU, although it is unlikely that we will see significant changes to citizens’ rights even if the deal is amended.

Businesses should act now

Those businesses who have been waiting to see the details of the ‘deal’ before taking any action really must start to prepare their plans and strategies, if they have not already done so.

We recommend that as a business you understand the diversity of your employee population, for example:

  • Are they predominately EU, UK or other nationalities?
  • Has appropriate immigration documentation been obtained to safeguard employees continued right to live and work in the UK?
  • Do you understand the new EU Settlement Scheme and how this will affect your population, what action is required and when?
  • How will you run your business if you could no longer access talent from the EU?
  • Will your employee population be affected by changes to their travel rights and those of their dependants, for deployment to the EU after the UK exits?

We recommend that you take this opportunity to assess your employee population and start putting processes in place to ensure that all eligible employees are permitted to remain in the UK following the country’s exit from the EU.  For information on how our experienced consultants can help your business prepare, please contact the team at UKImmigration@SantaFeRelo.com.

 

 

 

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