An Historic Moment
After three and a half years of extraordinary political tension and debate, the United Kingdom formally left the European Union on 31 January 2020, at 11pm.
The British Parliament finally ratified a Withdrawal Agreement (“WA”) with the EU via the European Union (Withdrawal Agreement) Act 2020 in January. The European Parliament, in turn, voted to approve the agreement two days prior to the deadline. This means that all of the formal ratification procedures have now been completed.
Legal Certainty
The main consequence of this is that the UK has now passed a point of no return. Article 50 of the Treaty on European Union sets out the legal and political process whereby an EU member state ceases to be a member of the Union. It provides for a two year period of negotiation of the terms of departure. The UK’s withdrawal was scheduled in law to occur on 29 March 2019. Because of the political stalemate in London, various extensions of this notice period were granted to 31 January 2020. In December, the General Election result removed the stalemate and brought the UK to January’s outcome.
The option of revoking the decision to leave the EU and remain as part of the block under the favourable terms of membership that various Prime Minister’s had negotiated fell away on 31st January.
What happens next?
Inevitably EU citizens, employers and other stakeholders will be concerned about the implications of Brexit and what it means for rights to work and reside in the UK.
The most important point to remember is that this is not a “cliff-edge” departure from the EU. Thousands of column inches have been dedicated to comparisons of “deal” and “no-deal” Brexit outcomes. Ratification of the WA means that the UK left with a deal and this includes preservation of the status quo at least for now.
Transition
Britain and the EU have agreed a transition (implementation) phase to last until 31 December 2020. Agreeing the terms of departure is only one part of the Brexit process. The parties must now negotiate the terms of the future relationship between the UK and the EU. These negotiations will start quickly and cover an enormous range of issues including trade, customs and regulatory alignment (or nonalignment). There is only eleven months to secure an agreement.
The general direction of travel for the future relationship was set out in the Political Declaration that accompanied the revised WA last October. However, this declaration is simply an indication of the parameters of agreement and has no legal force. A significant amount of detail is missing – it can be seen as a statement of intent rather than an agreed position.
During this transition period very little will change in terms of the movement of people and the establishment of residence rights, both for British citizens in Europe and EU citizens in the UK. 1 January 2021 will be a much more significant date in this respect.
EU Citizens’ Rights
It is worth reminding ourselves of the provisions agreed in respect of the movement and settlement of people during the transition period.
Legally, as the UK will no longer be a Member State of the European Union, the rights of free movement emanating from the EU treaties will no longer apply. However, the WA enables EU citizens in the UK and UK citizens in the EU to travel, work and reside across Member States in precisely the same way as before. There will be no new immigration controls, criteria or visa requirements until at least 1 January 2021.
The EU Settlement Scheme (EUSS) will continue to be available to EU citizens as well as those who arrive prior to midnight on 31 December 2020.
EUSS Summary
- EU citizens entering the UK prior to the end of December 2020 will be eligible to apply under the scheme.
- EU citizens who have resided in the UK for a five year period can obtain Settled Status (Indefinite Leave to Remain).
- EU citizens who have resided in the UK for less than five years can obtain Pre-Settled Status (Limited Leave to Remain) and will be eligible for Settled Status once they have completed five years’ continuous residence, regardless of the final outcome of Brexit negotiations.
- Qualifying EU citizens will have until the end of June 2021 to apply under the scheme.
What should we look out for in 2020?
Although the last three years have been long and fraught, January’s departure, whilst historic, was simply the end of the beginning of Brexit.
According to the legislation, the Government must make a statement to the House of Commons setting out a “statement of objectives” for trade and other aspects of the future relationship with the EU within 30 sitting days after 31 January. The statement must be approved by both Houses of Parliament before talks can begin in Brussels.
Prime Minister Johnson has committed the UK to concluding an agreement on the future relationship with the EU by the end of the year. This will require the two parties to adopt negotiating objectives, conduct detailed negotiations across a wide range of issues, and then agree and implement an outcome over an eleven month period.
The threat of no-deal will no doubt re-emerge in the second half of the year as time and political pressures begin to surround the negotiations.
Over this period the Government must also develop, legislate for and implement a new system of immigration control based on equality of access and a “level playing field” for citizens of all nations.
The Migration Advisory Committee (MAC) published its report recently on salary thresholds and the design of an “Australian-style” Points Based System for skilled migrants. This is an addendum to the work they completed in 2018 on recommendations for a post-Brexit immigration scheme. It will however be for ministers to determine the policy objectives and legal mechanisms that will govern the new framework. They must do so in short order if the administrative mechanisms are to be in place by the end of the year.
Under the terms of the WA, the Government has a “one-time” opportunity to extend the standstill transition for up to two years, and this must be agreed by 1 July 2020. The Prime Minister has repeatedly said that he will not seek such an extension.
January’s departure represented a hugely significant moment in the UK’s history. However, the real work is just beginning and the pressure is on.