Brexit FAQs: Citizens

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Updated 18 January 2021

This blog is one of a series answering some frequently asked questions (FAQs) about the UK’s exit from the EU, and what changes on 1 January 2021. These blogs are based on information available at the time of publication, and clearly the situation, and our understanding of it, will continue to be subject to change.   

They provide some general information and should not be seen as definitive advice for individual circumstances which may be complex.  However, wherever possible links to further sources of information are provided.

Other blogs cover the topics below, and can be found at the following links:

  1. Overview
  2. Transport
  3. Health
  4. EU law and institutions
  5. Negotiations (No Deal)
  6. Fishing, farming, and support for business

Brexit FAQs: Citizens

The rights UK citizens have will depend on when they arrived in the country in question.

Arrival before 31 December 2020

UK citizens and family members who were lawfully living in an EU state before 31 December 2020 (i.e. before the end of the transition period) have residence rights under the Withdrawal Agreement between the UK and the EU.

They will be able to continue living in their Member State of residence, with access to pensions, benefits and healthcare.

UK citizens who have five years of continued residence in a Member State will also be able to leave their Member State of residence for up to five years without losing their right to return.

The Withdrawal Agreement lets Members States choose between either setting up a scheme where the right to remain is automatic if the conditions are met, or one where UK citizens have to apply for residence rights (the deadline for applications cannot be earlier than 30 June 2021). The House of Commons Committee on the Future Relationship with the European Union published a report with an overview of different Member State schemes.

These rules do not apply to UK citizens in Ireland. As a result of the existing Common Travel Area, UK citizens can reside freely in Ireland and do not have to apply for residence rights after 31 December 2020.

It’s important to note that UK citizens’ rights under the Withdrawal Agreement are limited to the Member State where they are resident. They don’t allow for free movement to other Member States as UK nationals are no longer EU citizens. The Trade and Cooperation Agreement between the UK and EU doesn’t change this, as it only provides for limited mobility for UK nationals in the EU based on short term visas for holidays or defined business purposes.  National immigration rules will therefore be key to UK citizens who wish to move to another Member State.

There is a similar agreement to the Withdrawal Agreement with the European Free trade Association (EFTA) states which are members of the European Economic Area (EEA) – i.e. Iceland, Norway and Liechtenstein (EEA EFTA states) – and also an agreement with Switzerland. The UK has also signed a services agreement with Switzerland which allows for visa free supply of services by UK nationals in Switzerland (up to 90 days per year)

Arrival after 31 December 2020

UK citizens who arrive in an EU Member State, EEA EFTA state or Switzerland after 31 December 2020 are subject to the immigration rules in the country in question as supplemented by the limited rules on EU mobility in the Trade and Cooperation Agreement between the UK and EU and the services agreement with Switzerland.

Further information can be found on the UK Government’s site “Living in Europe” and in the Institute for Government document: “British citizens in Europe after Brexit.”

With the exception of Irish citizens who have existing rights to remain under the Common Travel Area,  the rights of citizens of the EU, Iceland, Norway and Liechtenstein (EEA EFTA states) and Switzerland will also depend on when they arrived in the UK.

Arrival before 31 December 2020

Under the Withdrawal Agreement and the agreements with the EEA EFTA states and Switzerland, freedom of movement was retained until the end of the transition period (31 December 2020).

The citizens of the EU, EEA EFTA states and Switzerland and family members who are lawfully living in the UK before 31 December 2020, have the right to remain in the UK but will have to apply to the EU Settlement Scheme by 30 June 2021 (this does not apply to people who already have the immigration status “indefinite leave to remain or enter”).

Applicants to the EU Settlement Scheme will either be granted settled status or pre-settled status.

Settled status can be granted to applicants who:
  • started living in the UK by 31 December 2020, and;
  • lived in the UK for a continuous 5-year period.

Pre-settled status can be granted to applicants who arrived before 31 December 2020 and who have not lived in the UK for a continuous 5-year period. Once a continuous 5-year period has passed, applicants can then apply for settled status.

Further information on applying to the EU Settlement Scheme can be found on the Gov.UK website. The Citizens Advice Scotland website also includes advice on staying in the UK after Brexit.

Arrival after 31 December 2020

Citizens of the EU, EEA EFTA states and Switzerland who arrive in the UK after 31 December 2020 will be subject to the UK’s new immigration rules. For details see the Gov.UK guidance: “new immigration system: what you need to know.”

Brexit means that UK citizens who aren’t dual EU nationals will no longer be able to vote in elections to the European Parliament in their resident EU country.

On 20 February 2020, the Scottish Parliament passed the Scottish Elections (Franchise and Representation) Act. It extends the franchise for Scottish parliamentary and local government elections to include all those with a legal right to live in Scotland and allows EU citizens to continue to vote in these elections. Those with indefinite leave to remain and EU, EEA EFTA and Swiss citizens with pre-settled status can also stand as candidates in Scottish parliamentary and local government elections.

EU, EEA EFTA and Swiss citizens will not be able to vote in UK Parliamentary elections as the UK Parliamentary franchise remains limited to British citizens, qualifying Commonwealth citizen or citizens of the Republic of Ireland. For details see the House of Commons Library’s guide on “Who can vote in UK elections?”

Very broadly, people who moved before the end of the Transition Period on 31 December 2020 and people moving between the UK and Ireland have their current rights protected.

New movers from the EEA to the UK will be treated in the same way as non-EEA citizens for access to means tested benefits such as Universal Credit.  Some other benefits, including the State Pension, are covered by a new Protocol on Social Security and can still be claimed by people moving between the UK and EEA states.

Rights vary depending on the type of social security benefit and the residence status of the individual concerned.  Residence for social security is not always the same as residence for immigration purposes.

The situation is complex and it is important to get advice on individual cases.

People within the scope of the Withdrawal Agreement have their rights protected for as long as they remain within scope. People can be within full scope, partial scope or derive rights as family members. See Figure 1 in this DWP guidance for examples.  Similar agreements apply to people from EEA/EFTA states and Gibraltar.  For people moving between the UK and Ireland, rights to benefits are protected by the Convention on Social Security.

  • EEA Citizens in the UK

EEA citizens in the UK can access the same benefits as UK nationals if they have ‘pre-settled’ or ‘settled status’. For those lawfully resident by 31 December 2020 a ‘grace period’ allows applications for settled status to be made until 30 June 2021.

Following a decision in the Court of Appeal on 18 December 2020 people with ‘pre-settled status’ will be able to claim Universal Credit, even if they have no other right of residence.  Decisions on claims may be delayed until after the outcome of any challenge.  For further information see this blog from CPAG.

  • UK Nationals in the EEA

UK nationals already living and/or working in the EEA by 31 December 2020 can continue to access benefits on the same terms as before the UK left the EU, including the State Pension, carer and disability benefits and Winter Fuel Payment.  They will need to comply with the residence scheme in that country (the equivalent of the UK settled status scheme).

People not covered by the Withdrawal Agreement

People moving between states who are outwith the scope of the Withdrawal Agreement may have access to certain benefits under a new Protocol on Social Security Co-ordination.  Access to other benefits will depend on the rules in individual countries.

Very broadly, ‘new movers’ between the UK and the EEA after 1 January 2021 are outwith scope of the Withdrawal Agreement, although in some cases people can move between states and still be covered. See examples in DWP Guidance (November 2020).

  • EEA Citizens in the UK

The broad policy intention for EEA citizens arriving from January 2021 is to align EEA citizens with non-EEA citizens in the UK’s immigration system while making protections for Irish citizens.

For example, EEA citizens arriving from January 2021 could be treated as ‘persons subject to immigration control’ with the condition of having ‘no recourse to public funds’.  This would exclude them from most social security benefits.  However, there are situations where new arrivals could still access benefits, such as if they have rights as a family member of someone already in the UK or they are covered by the Protocol on Social Security Co-ordination.

Some benefits that were included under the EU regulations that applied previously to the UK are now excluded.  For example, EEA citizens moving to the UK from now on will not be able to use periods of residence in other states to help them qualify for UK carer benefits and most disability benefits.  However, they will still be able to use contributions made in EEA states to help qualify for some other benefits including the State Pension, new style Job Seekers Allowance and new style Employment and Support Allowance.

  • UK Nationals in the EEA

People moving to the EEA from January onwards will still be able to access the UK State Pension and it will be uprated each year.  Other benefits which can be paid in the EEA are; Bereavement Support Payment, industrial injuries benefits, Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay and Statutory Sick Pay.

However, some benefits which could be claimed from abroad are now only available to people protected by the Withdrawal Agreement or Ireland Convention.  These include: Winter Fuel Payment, Child Benefit, Guardian’s Allowance, Child Tax Credit, Carer’s Allowance, Attendance Allowance, the care component of Disability Living Allowance, daily living component of Personal Independent Payment, Carer’s Allowance Supplement and Young Carer’s Grant, new style Job Seekers Allowance (JSA) and new style Employment and Support Allowance (ESA).

Further information

The UK Government website states that those UK students studying in EU member states in courses starting before 31 December 2020 “will be eligible for broadly the same support including fees, as students from the EU member state you are studying in”.

However, UK nationals planning to start studying at a university within an EU member state after 31 December 2020 “may have to pay different fee rates than currently”.

EU students will still be able to study in Scotland, but from 2021-22, they will no longer be eligible for free tuition.  In July 2020, the Minister for Further Education, Higher Education and Science, Richard Lochhead MSP, announced that from 2021-22, universities and colleges will be able to charge international fees to EU students.

EU nationals with ‘settled’ or ‘pre-settled’ status in the UK can still apply for home tuition fee status to study in Scotland from 2021-22, as long as they meet residency conditions. However, EU/EEA and Swiss nationals coming to Scotland from the start of January 2021 will not be eligible for tuition fee support. The Scottish Government is still considering the position for students from the Republic of Ireland.

For EU students studying in Scotland from 1 January 2021, a student visa will be needed for courses longer than six months, and applications must be completed and accepted prior to arrival in the UK. The application fee for this visa is £348. Students will also be required to pay the Immigration Health Surcharge at a discounted rate:

“Students receive a 25 per cent discount on the usual cost of this surcharge - so the rate for student visa holders is £470 per year.”

Scrutiny of the UK Internal Market Bill at Westminster led to questions around whether the Bill would have implications for free tuition for Scots domiciled students studying at Scottish universities. Currently, these students attend full time undergraduate university courses without paying tuition fees, while students elsewhere in the UK pay fees of up to £9,250 per year.

In September, Universities Scotland sought clarification on whether the Bill would: “end or limit the capacity of the devolved administrations to make different policy decisions about student fees in general, and to set different fees according to students' UK domicile.”

However, on 3 December UK Government Minister for Universities Michelle Donelan MP gave confirmation that the Bill would not have an impact, stating in response to a question from Patrick Grady MP:

“I can indeed confirm that it will not interfere with the Scottish Government’s ability to charge no fees for university students.”

All EU, EEA and Swiss citizens living in the UK before 31 December 2020 must apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021.

Following the end of the transition period, college and university staff arriving from EU member states will be subject to the UK’s new immigration rules. The further and higher education sectors have raised concerns about the loss of EU staff and in January 2020, Universities Scotland, UCU Scotland and NUS Scotland wrote to EU staff and students to assure them they remain welcome.

The July 2020 BEIS UK Research and Development Roadmap outlined plans for a new Office for Talent to attract science, research and innovation talent to the UK. The Global Talent Visa was launched in February 2020 and the eligibility criteria has since been extended to allow highly skilled scientists and researchers to apply without a job offer. However, an October 2020 Wellcome Trust report found the cost associated with coming to the UK may make it a less attractive option:

“From October 2020, the Immigration Health Surcharge will increase to £624 per year — meaning an upfront cost of more than £13,000 for a family of four on a five-year Global Talent Visa In contrast, the French Talent Visa is approximately £1,000 for the same family.”

The report states: “Based on Wellcome’s calculations: cost of a five-year Global Talent Visa for a researcher will be £3,728 (application cost £608 and IHSC cost £624 annually). For a researcher, their partner and two children the total cost will be £13,372 (IHSC cost for children is £470 annually). This represents a significant increase from the current level of £10,432

Further information about student visa routes, the Global Talent Scheme and the points based immigration route for skilled workers is available on the UK Government website.