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What legal rights will EU citizens have after a no-deal Brexit?
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What legal rights will EU citizens have after a no-deal Brexit?

As the outcome of the latest Brexit negotiations are still uncertain — and with 31 October less than one month away – the latest research update from the Public Law Project (PLP) shows that EU citizens would still lack statutory protection for their rights in the event of a ‘no-deal’ exit.

PLP’s briefing on EU citizens’ rights after a ‘no-deal’ Brexit provides EU citizens in the UK, and those advising them of their rights, with a single reference point on what the law currently says. It was first published in early August and has been updated to reflect developments in August and September.

The paper results from the work of our Statutory Instruments Filtering and Tracking project project and draws on still-evolving primary legislation, statutory instruments, explanatory notes and government policy documents. 

Aside from its practical use in advising EU citizens about immigration, settled status, and access to NHS and education services, the research also shows that the current legal framework does not offer much by way of statutory protection. 

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Whilst EU citizens who arrive in the UK before exit day appear to have their rights to stay and to access basic services protected, there is very little protection for them contained in primary legislation. Much of what is said about their rights is contained in secondary legislation, also known as statutory instruments, that can easily be altered by further primary or secondary legislation. 

Of greater concern is that much of what is recorded about EU citizens’ rights is found not in primary or even secondary legislation but in government policy documents and explanatory notes. These may well reflect the government’s current intentions on the rights of EU citizens but they do not provide a lot of certainty as to future arrangements. 

For example, the government suggested in August 2019 that it might revoke free movement law in the United Kingdom via statutory instrument by exit day. The government has since released a policy paper which states that most of the UK’s free movement framework will remain in place after exit day. The government also states in this policy paper that EU/EEA nationals who arrive after exit day will need to apply (by 31 December 2020) for a new status called European Temporary Leave to Remain or to have obtained a UK immigration status under a new “points based” immigration system. Otherwise they will be in the UK unlawfully.

European Temporary Leave to Remain, once granted, is a secure digital status which will give these citizens another 36 months in which they can live, work and rent property lawfully in the UK. However, this status is currently only set out in a policy paper. As of 7 October 2019, the government has not published the Immigration Rules or casework guidance governing this new status. Given the potential for a general election or changes in government policy before 31 December 2020,  this gives little security for those EU and EEA nationals arriving in the UK after exit day as to how long they will have to apply for European Temporary Leave to Remain and what rights it will give them. 

Furthermore if the Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019 laid on 11 July 2019 are approved by both houses of Parliament, then after exit day there will be significant changes to the rights of EU, EEA, Swiss and Turkish nationals when it comes to being self-employed and providing services in the UK. While still being able to be self-employed, own and manage a company or provide services in the UK, they will not be able to do so on the same basis as British citizens. EU, EEA, Swiss and Turkish nationals will also no longer be able to bring a claim of discrimination on the basis of nationality in relation to their rights to set up companies, be self-employed or to provide services in the UK. It is arguably more appropriate for these changes to be made via primary legislation. 

Overall, our research paper should be of some comfort to EU citizens living in the UK. The government has made many statements signalling an intent to protect the rights of those living in the UK prior to exit day. However, the Brexit legislative landscape is changing every day and very few rights are set in stone. What happens in the next few weeks and months will be crucial in determining how secure those rights actually are and the extent to which they are shaped by the executive alone or with appropriate oversight and scrutiny from Parliament.

This article was originally published in August 2019 and has been updated to take account of developments up to the new date of publication. Download the latest version of PLP’s paper on EU citizens’ rights here.

Alexandra Sinclair

Alexandra Sinclair is Fellow in Brexit, Parliament and the Rule of Law at the Public Law Project. She has an LLB(hons) from Victoria University of Wellington, New Zealand and an LL.M from Columbia Law School where she studied as a Fulbright Scholar. Alexandra has worked as a judges’ clerk at the New Zealand High Court and as a barrister in Auckland, New Zealand. She was awarded the Cleary Memorial Prize by the New Zealand Law Foundation in 2015 for showing outstanding promise in the legal profession.

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