The Brexit transition period is set to end at 11PM on 31 December 2020, after which the UK will officially break with the EU and EU law will no longer apply to UK territories. For the purposes of the EU Settlement Scheme, the government has provided for a “grace period” of six months in which EEA nationals can still apply for status under the EU Settlement Scheme without losing their rights. That grace period will end on 30 June 2021, after which EU citizens in the UK who have not acquired status under the Scheme will become unlawful residents and will be considered “late” applicants.
Draft legislation proposals reveal how the government intends to protect (most) of the people eligible to apply to the EU Settlement Scheme, but who have failed to do so before the end of the transition period. It sets out that during the grace period, economically active EEA nationals and Swiss nationals will automatically remain lawfully in the UK. They will also be protected if they do apply before 30 June 2021, but their application is unresolved when that deadline passes.
For economically inactive individuals such as students and self-sufficient EEA nationals, remaining legally resident will be more complicated. The deadline for application is still 30 June 2021, and until that day, economically self-sufficient people can stay in the UK. However, according to the draft legislation, if economically self-sufficient people have applied by the deadline but are still waiting for their application outcome on 30 June 2021, they risk losing their status and be found illegal residents in the UK for the period between 30 June 2021 and the conclusion of their application. It is also unclear whether during the grace period itself, they are considered lawful residents or merely granted relief from hostile environment policies, but still considered unlawful residents. Having such a period of unlawful stay on your resume can have far-reaching consequences when trying to apply for visas or re-enter the UK from abroad.
In order to avoid this period of unlawful residence, economically inactive applicants are encouraged to apply to the EU Settlement Scheme early. If they cannot do so, for whatever reason, they are advised to take up comprehensive sickness insurance (CSI) before the transition period ends (meaning before 31 December 2020), as holding CSI will protect them from losing their right to reside and become unlawful residents.
However, the cost of CSI is high and often out of reach for students and pensioners, who form a large part of the economically self-sufficient population affected by the proposed legislation. That is why practitioners and third-party actors in the field advocate for the government to drop the CSI requirement, rather than force a group of people to purchase insurance at a time when financial stability is increasingly challenged due to COVID-19.
Christopher Desira, founding solicitor at Seraphus, confirms this. “I just can’t see any reason why those citizens who do not currently reside in accordance with the EEA Regulations could not have been included as covered by the Statutory Instrument [the proposed legislation], for example, by disapplying the CSI requirement. The main purpose of the Statutory Instrument is to provide for a grace period rather than any additional rights relating to free movement and so I cannot understand why the government would exclude a potentially significant number of citizens.”
The number of people affected by this system is, like many other EU Settlement Scheme statistics, unpredictable, and will depend on various factors including the Home Office backlog of pending applications by the deadline of 30 June 2021, the number of outstanding appeals on that same date, the EUSS outreach, and the number of people who are aware of the CSI requirement.
There are other unanswered questions. For example, the issue of travelling. If an EU citizen who has not applied to the Scheme leaves the UK temporarily after the end of the transition period, but before the EUSS deadline, how will they be allowed re-entry to the UK? Presumably, the Home Office will allow EU citizens to be visa free nationals through mutual agreements, like US nationals are now for example, so that these individuals can return to the UK as temporary visitors, and then apply to the EUSS whilst here on their visitor visa. However, these are presumptions – there is no guarantee, or legislative proposal to warrant them. It is impossible to predict how flexible or welcoming the post-transition period rules at the border will be, especially in light of the state of the Brexit negotiations at the moment.
Additionally, for non-EEA family members who rely on derivative rights to apply to the EUSS, all of these issues will be even more complicated. Not only are non-EEA nationals applying based on derivative rights not covered by the proposed legislation, their immigration status is also unclear during the grace period between 1 January 2021 and 30 June 2021.
Although the proposed legislation does not break the law or contradict EU citizen rights guaranteed under the Withdrawal Agreement, immigration professionals and third-party actors have said that it is flawed, as the CSI requirement is largely unknown to the wider population and only complicates EEA nationals’ plight to stay in the country legally.