EU citizens, when it comes to Brexit fallout, this is what you need to do to safeguard your stay in the UK

Many mistakenly believe that, if there is no deal, there will be a cliff edge, resulting in EEA nationals having to leave the UK and that those travelling to the UK post-Brexit would need a visa. Thankfully the picture isn’t quite that bleak – at least not for the next 18 months or so

I, like many others, have had enough of the uncertainty and bickering surrounding Brexit. 29 March 2019 has come and gone. Despite all the promises since the referendum, we are still in the EU. Even worse, we are none the wiser as to how, when, or even if, we’ll leave the EU. But what about those individuals whose lives are potentially impacted by the decisions made in Westminster and Brussels? Where do the 3 million EEA nationals stand in all this ongoing indecision?

Many mistakenly believe that, if there is no deal, there will be a cliff edge, resulting in EEA nationals having to leave the UK and that those travelling to the UK post-Brexit would need a visa.

Thankfully the picture isn’t quite that bleak – at least not for the next 18 months or so.

If the deal is agreed, free movement for EEA nationals would continue until 31 December 2020, and any EEA national residing in the UK by then would be able to stay here long term. There is however a proviso: they must apply for settled or pre-settled status under the EU Settlement Scheme by 30 June 2021, as in the event of a deal there is a six-month grace period after free movement ends in which to submit that application.

What if there is no deal? Even in that worst-case scenario, EEA nationals residing in the UK on the date on which we leave the UK (Brexit date) may remain and would have until 31 December 2020 to apply for settled status or pre-settled status. (If an individual has been residing in the UK for less than five years, they must apply for pre-settled status. Any longer and they must apply for settled status.)

Also, in the event of a no-deal, any EEA national coming to the UK after Brexit would not need a visa but may only remain for three months. To stay for longer, they must apply for temporary European leave, which is valid for three years. After this, they would need to leave the UK or apply under the immigration rules at the time.

That’s when we’ll see the real end of free movement.

From 1 January 2021, EEA nationals will be treated in the same way as other overseas nationals – if they arrive in the UK after 31 December 2021 (deal or no deal), they will need to qualify under the new immigration rules. Many EEA nationals simply won’t qualify – especially if they’re in low skilled jobs or earn less than a specified amount, which is likely to be around £30,000 per year.

It’s at this stage that the hospitality, retail, social care and construction sectors will really feel the impact of Brexit. A transitional scheme may offer some relief as this will allow certain overseas nationals to come to the UK to work in any role for up to 12 months. Quite how this will be monitored by the Home Office remains to be seen.

The risk? A potential scandal that could be even greater than Windrush. The EU Settlement Scheme relies on over 3 million registering themselves by the relevant deadline. Human nature being what it is, many people will inevitably never get round to doing this. Others may just refuse to. Also, it’s not just EEA nationals; their family members will need to register too.

The scheme relies upon the Home Office being sufficiently resourced to handle this volume of applications. Inevitably, with a largely automated system, there will be errors and people may fall between the cracks – especially those who have never worked or claimed benefits and have no footprint with DWP or HMRC.

This is where I fear the next scandal will emerge. It’s likely those failing to register by the deadline will then be in the UK unlawfully, even if they have lived and worked here for many years. They then become subject to our hostile immigration environment: unable to work, hold a driving licence, have a UK bank account or access free healthcare. If that’s not enough, they may be threatened with removal.

It’s essential that EEA nationals, their family members and their employers take note. Deal or no deal, all EEA nationals (other than Irish and those with dual British nationality) must act now to secure their long-term right to stay here. We can only hope that once the deal – or no deal – gets through, the government does the right thing and gets this message across clearly to individuals and employers.

Kerry Garcia is partner at Stevens & Bolton