Consider Giovanna or Giovanni, who immigrated to the UK from Italy and has lived here for many years but has never applied for British citizenship, has never heard of Brexit, and has missed the time to apply for settled status. Assume Giovanna or Giovanni work for a digital agency, a bookstore, or a restaurant, have a British citizen partner, and a couple of children. So, what happens?

The ability to work

Everyone who is usually resident in the United Kingdom has the right to work. Those who arrive in the UK from another country and are subject to immigration checks may or may not be granted this right. However, when Giovanni or Giovanna arrived in the UK as a result of their free movement rights inside the EU, they were not subject to immigration control and were not granted the right to work. If a right that was not conferred in the first place can be alienable – or taken away – it is at least debatable. As a result, if our friend continues to work for their digital agency, bookstore, or restaurant, their status will be slightly unclear but not insurmountable.

What about their boss? Is there any doubt about their position? Giovanni does not need to redo the right to work check and will not be held responsible as long as he started working for them before December 31, 2020, and they have retained a copy of their Italian passport on file.

So far, everything is going swimmingly.

But what if one of our friends decides to change jobs? Oh no, this is not something I would endorse. No employer will recruit them unless they have a right to work check, which is impossible because right to work checks are linked to the EU Settlement Scheme database.

Starting their own company? Yes, I believe that is achievable. So long as they don’t have to leave the country for any reason, business or otherwise.

The right of residence

I’m not aware of any legal laws that would make our pals illegal. Missing the 30 June deadline is not an immigration offence, and they have not committed one because they arrived in the UK when they were not subject to immigration control. If the Immigration officers asked my opinion, I would tell them that they cannot be deported from the UK.

But what if they go on vacation? Don’t do it, Giovanni and Giovanna! Go to Cornwall or Scotland, for example. However, do not leave the island. You will not return. Perhaps as visitors, however I wouldn’t be shocked if you aren’t admitted as visitors because your ties to the UK signal that your stay is more than a passing through.

So, hold on! Don’t go anywhere.

However, if you think about it, and recall that our Giovannis have a British companion, there may be a method to get them back from their international vacation. All they have to do now is apply for a spouse visa! It takes roughly three weeks if they pay for express service, or three months otherwise, and it is quite expensive – especially when viewed as a punishment for missing the deadline – but it is not impossible, as long as their partner’s income exceeds the financial criteria.

Does the fact that they have two British-born children make a difference? No, not at all. At least, not unless the British partner disappears or becomes incapable of caring for the children, but I don’t want to be too pessimistic. Let us keep to our idea of not sending Giovanni or Giovanna overseas and instead enjoy our beautiful wave-girt land, and perhaps a band of Italian days will come from the South and the weather will smile on Albion.

Finally, there is the NHS

We’ve entered a very grey area. The NHS is free for people who are habitually resident in the UK, but whether our friends will be regarded as habitual residents without proof of established status remains to be seen. There will be many lawyers eager to plead their case, and our friends will have to select a decent one.

And, as a side note, what if they have a child born in the UK after June 30, 2021? The child may become a British citizen if Giovanni or Giovanna can demonstrate that they were in continuous employment for a five-year period prior to December 31, 2020. But what if… I’m not sure I want to finish this phrase. I’ll save it for another day…

Spouse Visa UK - Chauhan Solicitors