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Brexit update

EU citizens’ rights in self-employment ‘disapplied’

FOLLOWING the recent General Election, Brexit is now due to go ahead on 31 January, or possibly even sooner (unlikely). The transition period, during which it's business as usual - with EU legislation and freedom of movement still in effect in, from and to the UK - is still set to end on 31 December 2020.

Economics teachers against Brexit at a march in September 2019; Photo: Matt Salusbury

Economics Teachers Against Brexit and a Scottish pro-EU flag at a march in September 2019

UK government figures have suggested the transition period may even end earlier, although this is unlikely. There are widespread fears that the UK government may deliberately crash out at the end of this transition period without a formal Withdrawal Agreement and without concluding the detail of negotiating a future relationship with the EU. Other commentators suspect that imposing a deadline on itself to have a deal done and dusted by 31 December may mean the UK having to make concessions, although it's doubtful improved citizens' rights would be among them.

EU nationals living in the UK who have not yet applied for the EU Settlement Scheme are advised to do so. You have until 31 June 2021 in the event of the UK having concluded a Withdrawal Agreement with the EU by the end of the transition period, or until 31 December 2020 if the UK leaves with no deal. (See our most recent update on the Settlement Scheme here.) We cannot give an update on the fate of UK nationals living in EU member states - this remains uncertain. Individual EU Member States have made arrangements for UK nationals currently resident in them.

See also our most recent advice on travelling to and from the EU and the expiry date of your passport, regardless of whether you are an EU or UK national.

So far, the only legislation safeguarding the rights of EU nationals in the UK has been "secondary legislation": it's not been put before Parliament for a vote. Given its lack of attention to detail, its level of competence and its attitude in general, the new government may well now not bother to enact any Acts of Parliament on the status of EU nationals.

One recent development has been that as of "exit day" (likely to be 31 January), EU nationals will no longer have the right to be self-employed, "provide services" or own or manage a company in the UK on the same basis of EU nationals. These rights will be "disapplied" to EU nationals. EU nationals will no longer be able to bring cases arising from discrimination on the basis of nationality in trying to work in self-employment or to carry out services.

It's all buried in a draft statutory instrument called the Explanatory Memorandum to the Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019, published in July.

The government has said in a House of Commons debate that these regulations will not have any effect on the immigration regime for EU nationals in the UK, although this raises the question; why, then, has the government gone to the trouble of "disapplying" these rights? The Freelance is seeking advice on what this will actually mean in practice: watch this space.

EU nationals will also lose some of their protections against deportation. While they could up to now only be deported based on very strict criteria such as "serious criminality", from "exit day" they can be deported if their presence in the UK is considered "not conducive the public good".