Online only, so far

Brexit update - not good!

AS WE GO live, the latest developments on Brexit are not good, especially for our many EU national members living and working in the UK and for our many UK national members in the EU. EU members in the UK face the real prospect of suddenly becoming "illegals".

The so-called "government" of Alexander Boris de Pfeffel Johnson claims to be hell-bent on crashing out of the EU without a deal in 31 October. To that end, Johnson recently requested a five-week prorogation (complete suspension) of Parliament, to take effect in the second week of September. Incoming Home Secretary Priti Patel announced that freedom of movement - visa-free travel and the right to work and settle within the EU - would end on 31 October with the UK's exit from the EU. [Update: then read the legal advice that said no, Minister, you can't do that.]

Broken promises

This announcement contradicted to earlier promises made by Johnson and his predecessor Theresa May that new arrivals from the EU would be able to stay if they arrived before the end of the transition period immediately following Brexit (the transition period ends on 31 December 2020). As the Freelance has previously pointed out, any such assurances remained meaningless until HM Government actually introduces legislation guaranteeing the status of EU nationals, which it never actually got around to doing.

Around a million of the estimated three million EU nationals living in the UK have already applied for and secured Settled Status. But many EU nationals in the UK have yet to begin the process of applying for and securing EU Settled Status, which will allow them permanent residence in the UK after Brexit.

Many haven't done so yet in the reasonable belief that there was no hurry to do so. They were led to believe they had until 30 June 2021 to apply, but this later deadline seems to have vanished in the fog of an impending No Deal. The transition period during which freedom of movement is still supposed to apply seems to remain in place for the moment, ending 31 December 2020, but even that's uncertain in the very likely event of No Deal.

Many EU nationals noticed early on in the process that concessions were made on the EU Settled Status requirements. The original £60 application fee was waived in its early days, so it was reasonable for EU nationals to delay their applications in the expectation that more concessions would be made. Now it's clear that this won't be the case. With numerous technical glitches with the online Settled Status application system (see below), it was also reasonable for EU nationals to delay applying in the hope that these would be sorted out.

All this raises the very real prospect that EU nationals who haven't yet sorted out their Settled Status may find themselves living illegally in the UK on 31 December 2020, or possibly even as early as 31 October 2019. EU nationals who are abroad on either of those dates may find they can't re-enter the UK. We just don't know.

The Freelance was never sure that it's even legal for the UK government to just announce such major changes in immigration policy in this way. (Patel's announcement wasn't - see update above)

There have been numerous occasions on which non-EU nationals have been denied entry, had visas revoked, or been deported because of changes to Home Office guidelines - only for the UK courts to rule such decisions were unlawful. Home Office guidelines have not been laid before Parliament, and immigration law dating back to the 1970s and still in force states that changes to immigration law need to be laid before Parliament. These announcements haven't been, and the government is unlikely to be able to pass any legislation in the current circumstances.

Substandard status scheme

Problems with the Settled Status scheme remain. The default tick-box setting on the online application is for "Pre-settled Status" - the lower-status probationary period for those who haven't been in the UK for five years. Applicants have to actively check the full Settled Status box, covering those who've been in the UK five years or more. Some EU nationals who've been in the UK longer and who qualify for the full Settled Status may end up with Pre-settled Status by mistake.

The online application still only works on Android phones - it won't work on iPhones (regarded as the standard kit by many journalists). The language used in the instructions for the application process doesn't seem to take account of an audience that has English as a second language. Some Home Office "advice" on its websites has later been ruled in court to be misleading, resulting in earlier negative decisions on the naturalisation of children of citizens from some EU countries being subsequently overturned.

A Home Office radio advert - assuring EU nationals that they would only need a passport or the national ID card of their member state to obtain EU Settled Status - was banned after the Advertising Standards Authority ruled that it was misleading. Nearly all EU nationals will need additional documents.

There have already been some high-profile rejections of Settled Status applications, including Professor Daniel Muijs, the Belgian head of research for OFSTED, who has worked in the UK for 20 years. The Home Office said his application had not been definitely turned down, they were awaiting more information from him and would contact him for clarification.

Back in the EU

It's not good news either for our many colleagues who are EU nationals in the EU, including members of NUJ Paris Branch, NUJ Brussels Branch and NUJ Netherlands Branch. Johnson promised to guarantee the status of EU nationals in the UK shortly after taking office, although his government's subsequent actions suggest his pledge was meaningless. With his usual lack of attention to detail, Johnson neglected to mention the approximately one million UK nationals in the EU.

Most EU member states have unilaterally granted permanent residence and work rights to UK nationals, with varying degrees of generosity. Some UK nationals in Germany who had registered with their local authorities, for example, started receiving their Fiktionbescheinigung (probationary residence permits) in their passports at the end of August.

However, some EU member states granted permanent residency to British nationals conditional on "reciprocity", dependent on the UK authorities in the event of No Deal granting similar rights to the nationals of that country in return.

Several member states have draft legislation ready to go before their parliaments to pass into law in their emergency No Deal packages for UK nationals. They're just waiting for the UK authorities to guarantee the same for their nationals in the UK.

As there have been to date no such assurances from the UK, some of the more generous aspects of the various permanent residence packages UK nationals can enjoy are now in doubt. Foreign Secretary Dominic Raab recently announced that "we're working and with European countries to make sure the legislative and legal arrangements are in place" - no details yet, unsurprisingly.

According to some reports, this is likely to lead to numerous legal cases (in the UK courts) from UK nationals suing the UK government for their negligence in effectively abolishing their rights.

Raab recently unveiled £3 million of "extra funding" for UK nationals in the EU, aimed at helping them to deal with the "administrative burden" in securing permanent residence in countries in which they have settled. This Foreign Office money will be distributed via unnamed "charities", with priority going to UK expats who are pensioners or who are disabled.

See here for how NUJ members can get advice on EU Settled Status to ensure they can remain in the UK, as well as advice on post-Brexit permanent residency for UK nationals in the EU. The website of your embassy should have up-to-date information on what to do in the event of a No Deal Brexit. It's a good idea to sign up for their email alerts.

Our most recent advice from an immigration lawyer on applying for EU Settled Status (March 2019) is here.