European Union: European Council Agrees Brexit "Flextension" To 31 January 2020

Today, Mr Donald Tusk, the President of the European Council, confirmed that the EU27 will accept the UK's request for a "flextension" of the current Brexit deadline (31 October 2019) to 11pm GMT 31 January 2020. This decision is expected to be formally confirmed through a written procedure adopted by the EU27 on Tuesday or Wednesday this week.

Although the European Council has confirmed their decision to agree a "flextension" to the Brexit deadline, the UK (at the time of writing) has not yet accepted this decision. However, it is a legal requirement under the Benn-Burt Act that the Prime Minister must immediately after the European Council's decision to agree an extension of the Brexit deadline to 31 January 2020 notify the European Council that the UK agrees to the proposed extension.

Should the UK confirm that it accepts the European Council's extension decision, this will mean that the UK will be scheduled to leave the EU on 31 January 2020 (note that the UK Government is legally required by amendments introduced in the Benn-Burt Act to introduce the necessary amending regulations, i.e. a statutory instrument, required to change the current definition of exit day in the European Union (Withdrawal) Act 2018)). However, under the terms of the draft extension agreement (which has yet to be published and may be subject to further change following discussion amongst the EU27), if the UK Parliament ratifies the revised Brexit deal before 31 January 2020 the UK may leave the EU earlier than scheduled (i.e. on the first day of the month following the ratification of the revised Brexit deal).

However, the UK will leave the EU on a no-deal basis if by 11pm GMT 31 January 2020: (i) the UK Parliament has not yet ratified the revised Brexit deal; and (ii) the UK Government has not secured another extension to the Brexit deadline from the EU.

On 30 October 2019, the statutory instrument amending the definition of "exit day" in the European Union (Withdrawal) Act 2018 to 31 January 2020 became law.

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