Countdown to Brexit: 57 days – Next steps in Parliament – and impact on EU citizens in the UK in a ‘no-deal’ Brexit

On Tuesday 29 January, the Commons debated the Prime Minister’s proposals for “next steps” in the Brexit process.  MPs were empowered to express a view about whether they approved or disapproved of the Government’s contingency plan – and to present specific proposals about what should happen next.  Two of these ‘amendments’ were adopted as part of the final resolution

The Spelman amendment. 

Approved by 318 votes to 310.   This amendment is not legally enforceable – and serves simply as an expression of the House’s belief that a no-deal scenario is an undesirable one.

Theresa May had previously said that: “The right way to rule out no-deal is for the House to approve a deal with the European Union - and that is what the Government are seeking to achieve.  The only other guaranteed way to avoid a no-deal Brexit is to revoke Article 50, which would mean staying in the EU.”

The Spelman amendment does not call for any specific course of action in the absence of a deal – be that the ‘Prime Minister’s deal’ specifically or any other deal.

The Brady amendment

Approved by 317 votes to 301.  Addresses the Northern Ireland backstop.  Those voting for the amendment indicated that their support for the Government’s exit deal would be contingent upon “replacing” the backstop with “alternative arrangements.”

This amendment did not specify what those “alternative arrangements” would be.  It presents potential challenges beyond how the EU might respond to such a request – as we do not know whether all of those backing this amendment all had the same “alternative arrangements” in mind.

Parliament’s role

Now that the “next steps” debate has happened - there is no further statutory role for Parliament in the withdrawal process - unless and until the Government brings forward another approval motion for a negotiated exit deal.  However, the Prime Minister has committed to a debate – similar to the debate on Tuesday - to take place on 14 February in the absence of a revised deal between the UK and EU.

Theresa May said: “We will bring a revised deal back to this House for a second meaningful vote as soon as we possibly can….If we have not brought a revised deal back to this House by Wednesday 13 February, we will make a statement and, again, table an amendable motion for debate the next day.  So the House will have a further opportunity to revisit this question of leaving without a deal.”

Ultimately, if a deal is to be agreed to and ratified, the same legal requirements apply now as they did back in November.  The Commons must approve the deal in a “meaningful vote”; the Lords must get to debate the deal; and Parliament as a whole must pass an Act containing provisions to implement it.

This must happen before the 29 March 2019 unless the Prime Minister seeks, and secures, an extension to Article 50(3) by a unanimous decision of the European Council.

Immigration

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 received its Second Reading on 28 January - and has passed into Committee stage.

Secretary of State for the Home Office, Sajid Javid MP, announced a new ‘European Temporary Leave to Remain in the UK’ as part of the Government’s no-deal Brexit planning.

The Government plans to implement the Immigration Bill and end free movement from 30 March 2019 in the event of a no-deal Brexit.  This means that for the most part, EU citizens and their family members who come to the UK from 30 March 2019 will require immigration permission to enter the UK.  The Government and the Home Office will need rules in place to grant immigration leave to enter and remain to EU citizens. 

However the Government has stated that the new immigration rules, as set out in the White Paper, will “take some time to implement.”  This means there will be a gap in immigration law and policy between the end of free movement and the implementation of the new immigration rules for EU citizens.  To fill this gap, the Home Office has announced it will implement the new ‘European Temporary Leave to Remain in the UK,’ subject to parliamentary approval.

Background

The main features of European Temporary Leave to Remain

EU citizens (including EFTA citizens) will be able to enter the UK as they do now - thta is, without the need for a visa/immigration permission) for a period of up to three months.  During this time EU citizens will have the right to work and study in the UK.

EU citizens who wish to remain in the UK for more than the initial three months will need to apply for ‘European Temporary Leave’.  The Home Office has explained that this will be done through an online application where the applicant will need to prove their identity and declare any criminal convictions.  This sounds similar to the application process for ‘settled status’.

European Temporary Leave will allow the holder to remain in the UK for 36 months from the date of their application.  EU citizens with this type of leave will have the right to work and study in the UK.  It will be temporary and cannot be extended, nor will it lead to settlement in the UK.  Holders of this type of leave would be required to apply for further leave to remain under the UK’s new immigration rules when implemented in the future.  As the Home Office explains: “there may be some who do not qualify under the new arrangements and who will need to leave the UK when their leave expires.”

There will be an application fee and family permits will be required for non-EEA ‘close family members’.  The Home Office explains in further detail: “European Temporary Leave to Remain will allow EEA citizens arriving in the UK after 29 March 2019 to live, work and study in the UK if there’s no Brexit deal.

“EEA citizens who are granted European Temporary Leave to Remain will be able to stay in the UK for 36 months from the date of their application.  European Temporary Leave to Remain will be a temporary, non-extendable immigration status.  It will not give indefinite leave to remain (ILR), lead to status under the EU Settlement Scheme or make EEA citizens eligible to stay in the UK indefinitely.  If EEA citizens want to stay in the UK for more than 36 months, they will need to apply for an immigration status under the new immigration system, which will come into effect from 1 January 2021.  Those who do not qualify will need to leave the UK when their European Temporary Leave to Remain expires.”

The following people will not be required to apply for European Temporary Leave

  • EU citizens and their family members with settled or pre-settled status.

  • Irish citizens.

  • Those who are a “serious or persistent criminal or a threat to national security” will not be eligible and the UK’s deportation threshold will apply.

  • EU citizens can enter the UK with either their passport or a valid nationality identity card.

  • The Home Office explains that employers and landlords conducting right to work and rent checks for EU citizens will not be required “to start distinguishing between EU citizens who were resident before exit and post-exit arrivals.”  Until 2021, EU citizens can continue to rely on their passports or national identity cards.

Settled status and no-deal

The introduction of European Temporary Leave does not affect those eligible for the settled status scheme.  EU citizens living in the UK prior to 29 March 2019 can still apply for settled status in a no-deal Brexit, as European Temporary Leave is a status for those who arrive after 29 March 2019.  For more information on this, see the Library’s Insight ‘What does the Withdrawal Agreement say about citizens’ rights?’.

The settled status scheme has completed its restricted pilot testing phases and is now open for applications from all eligible EU citizens.  The Prime Minister Theresa May announced on 21 January 2019 that the £65 fee for settled status will be abolished.  People who have already applied and paid the fee will be refunded.

The Home Office has further stated that EEA citizens who arrive in the UK after 29 March 2019, but who had lived in the UK prior to 29 March 2019, will be eligible to apply for settled status.  It is not clear what the specific eligibility requirements will be for people with these circumstances who wish to apply for settled status.

Further reading

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19, House of Commons Library.

The status of EU citizens in the UK after Brexit, House of Commons Library.

What does the Withdrawal Agreement say about citizens’ rights? House of Commons Library.

An employer’s guide to right to work checks, Home Office, 28 January 2019.

 
John ShuttleworthComment