Introduction

For EU Citizens from other EU states who are concerned about their EU Citizens’ rights and Immigration rights in respect of the UK, the position is now clearer. The UK-EU Withdrawal Agreement sets out their rights for those who fall within its scope by the end of the transition period (31 December 2020).  Further, in the UK Appendix EU of the Immigration Rules sets out the scheme for granting leave to enter or remain in the UK for those qualifying for Settled Status or Pre-Settled Status. Finally, the European Union (Withdrawal Agreement) Bill makes provision to implement and supplement the Withdrawal Agreement in UK law.

The European Union (Withdrawal Agreement) Bill  

As at December 2019 the UK has published its European Union (Withdrawal Agreement) Bill. As the Government has a working majority in the House of Commons, the assumption is that it will pass into law as an Act in January 2020 and that the UK will leave the European Union on 31 January 2020. The Bill makes provision for the EU Citizens’ rights and Immigration rights found in the UK-EU Withdrawal Agreement.

Under the Bill, EU law is to continue in force in the UK during the transition period (called ‘the implementation period’) (ending on 31 December 2020) and beyond that time period where provided for under the Withdrawal Agreement, with some modifications (see clauses 1-4). That means that the provision for EU Citizens’ rights and Immigration rights will continue as now during the transition period, and beyond that time for people who fall within the personal scope of the Withdrawal Agreement.

Residence Rights – Application Deadlines

The European Union (Withdrawal Agreement) Bill (clause 7) makes provision for a Minister to make such regulations as she considers ‘appropriate’ in  order to set a deadline for applications for residence documents (i.e. for settled status/pre-settled status) as provided for by Article 18(1) of the Withdrawal Agreement. Under the terms of the Withdrawal Agreement the UK is not obliged to require such documents for people with residence rights under the Agreement. Nevertheless, the UK has chosen to implement such a documentary residence scheme (in Appendix EU of the Immigration Rules).

Not only may the regulations made under the Withdrawal Agreement modify other regulations, they may also modify an Act of Parliament. Thus, the power to make such regulations is what is known colloquially as a Henry VIII power.

Under the Withdrawal Agreement, where a person is residing the UK at the end of the transition period (31 December 2020) the deadline for submitting such an application may be not less that six months after the end of the transition period (currently that would be the end of June 2021). Thus, a longer period for making applications is permissible and the UK should be encouraged to make regulations for a long application period, so that people are not rendered unlawfully present where they fail to make early applications.

For people who have the right to begin UK residence after the end of the transition period (31 December 2021) (for example certain people born after the end of the transition period to those who had residence rights before the end of transition period), the deadline for submitting the application is three months after their arrival or the expiry of the application deadline, whichever is later.

Moreover, under the Withdrawal Agreement, the deadline for submitting an application is extended automatically by one year where the UK notifies the EU that technical problems prevent the UK either from registering the application or from issuing a certificate of application. If it appears that large numbers of EU Citizens or their family members have not applied for residence documents by the application deadline, then the UK should be encouraged to issue such a notification and to amend its own regulations accordingly.

Further, where the deadline for submitting a residence application is not respected by a person, under the Withdrawal Agreement the UK Home Office is obliged to assess all the circumstances and reasons for not respecting the deadline and allow such a  persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline. UK regulations will need to make provision for this aspect of the Withdrawal Agreement.

Temporary Protection before the Application Deadline

The European Union (Withdrawal Agreement) Bill (clause 7) makes provision for a Minister to make such regulations as she considers ‘appropriate’ in order to make provision for the protection of EU Citizens and their family members, etc., during the period prior to the deadline for making residence  status document applications.

Such protection is provided for in Article 18(2) of the Withdrawal Agreement and means that all rights provided for in the Citizens’ rights part of the Withdrawal Agreement are deemed to apply to EU Citizens or United Kingdom nationals, their respective family members, and other persons residing in the UK as provided for by the Withdrawal Agreement (in accordance with the conditions and subject to the restrictions set out in Article 20 of the Agreement). In other words, a person gets the full benefit of her rights prior to the application deadline under the Withdrawal Agreement even if she has yet to secure a residence document.

Under Clause 7 of the Bill, a UK Minister may extend this protection (Article 18(2))  not only to those covered by the Withdrawal Agreement but also to those who fall outside its scope but who nonetheless may be granted leave to enter or remain under residence scheme immigration rules (e.g. Appendix EU of the Immigration Rules) but who do not have such leave.

In the Bill the term ‘residence scheme immigration rules’ means

• Appendix EU to the immigration rules except those rules, or changes to
  that Appendix, which are identified in the immigration rules as not having effect in connection with the residence scheme that operates in connection with the withdrawal of the UK from the EU,
  and
• any other immigration rules which are identified in the immigration rules as having effect in connection with the withdrawal of the UK from the EU.

Temporary Protection while an Application is Pending

The European Union (Withdrawal Agreement) Bill (clause 7) makes provision for a Minister to make such regulations as she considers ‘appropriate’ in order to make provision for the protection of EU Citizens and their family members, etc., pending a decision on their application for residence status documents.

Such protection is provided for in Article 18(3) of the Withdrawal Agreement and means that pending a final decision by the UK Home Office on any residence status application, and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the Home Office, all rights all rights provided for in the Citizens’ rights part of the Withdrawal Agreement  are deemed to apply to the applicant.

Under Clause 7 of the Bill, a UK Minister may extend this protection (Article 18(3))  not only to those covered by the Withdrawal Agreement but also to those who fall outside its scope but who nonetheless have made an application for leave to enter or remain under residence scheme immigration rules (e.g. Appendix EU of the Immigration Rules).

Frontier Workers

The European Union (Withdrawal Agreement) Bill (clause 8) makes provision for a Minister to make such regulations as she considers ‘appropriate’ to implement provisions of the Withdrawal Agreement concerning frontier workers (i.e. those that live in one country (an EU state) but work in the UK), in respect of rights of entry and exit from the UK.

Under Articles 24(3) and 25(3) of the Withdrawal Agreement, employed and self-employed frontier workers enjoy the right to enter and exit  ot and from the State of work  (for example the UK) and, in addition, retain the rights they enjoyed as workers there, provided they are in one of the circumstances where they would retain worker status  under the Citizen’s Directive (2004/38/EC) (for example where temporarily unable to work as a result of illness or accident), even where they do not move their residence to the State of work.

For example, a self-employed Italian journalist, who lives in the Republic of Ireland but who works in Northern Ireland (the UK), has the right of entry and exit from the UK under the Withdrawal Agreement. UK regulations made under clause 8 of the European Union (Withdrawal Agreement) Bill may give effect to that right.

Further, the European Union (Withdrawal Agreement) Bill (clause 8) makes provision for a Minister to make such regulations as she considers ‘appropriate’ to implement provisions of the Withdrawal Agreement concerning frontier workers (those that live in one country (an EU state) but work in the UK), in respect of the issue of documents.

By Article 26 of the Withdrawal Agreement, the UK may require EU Citizens who have rights as frontier workers to apply for a document certifying that they have such rights. Such EU Citizens have the right to be issued with such documents. Thus, the self-employed Italian journalist, who lives in the Republic of Ireland but who works in Northern Ireland (the UK), has the right such a document under the Withdrawal Agreement. UK regulations made under clause 8 of the European Union (Withdrawal Agreement) Bill may give effect to that right.

The regulations may modify any provision made by or under the Immigration Acts. Thus, they can modify an Act of Parliament. The power to make such regulations is what is known colloquially as a Henry VIII power.