Union Jack and EU flag overlaid on a map of Europe

Government plans announced for rights of EU citizens after Brexit

It has been announced that millions of Eu citizens in the UK will have to apply for “settled status” should they wish to remain in the country following the UK’s exit from the EU.

Since the “Brexit” referendum and the subsequent decision that the UK will withdraw from the EU, EU citizens wanting to live and work in the UK and their employers have had uncertainty regarding their future rights. A government policy has now been published which provides a broad framework of the immigration process and other benefits EU citizens may be entitled to once the “Brexit” process is complete.

These plans are equally important to UK nationals who live in other EU countries as it is envisaged that the arrangements will be reciprocated (this clearly remains to be determined).

Assurances have been given that until the UK withdraws from the EU the existing position remains – It has now been announced that there is no need for EU citizens to apply to secure their immigration position at present. However, some EU citizens could greatly benefit from taking steps to protect their immigration position sooner rather than later. Notwithstanding the Government policy and reassurances, it is advisable that all EU citizens take steps to document their residence and activities in the UK – including securing a document confirming thy have qualified for permanent residence under the current regime.

It has been proposed that when the UK does finally exit the EU (a process which could take at least 2 years to 29 March 2019), EU citizens and their families who wish to remain in the UK will need to apply to the Home Office for permission to stay. There will be a grace period where a generic ‘umbrella’ of temporary leave will apply to all existing lawful EU residents (and their families) for a fixed period of time. This will give a period between the moment that EU right of free movement are lost and the time EU citizens obtain their immigration status documents.

During this grace period an EU citizen who wishes to stay in the UK must apply under new rules which will decide who qualifies for residency status. These will be different to the current scheme for EU citizens (presently EU citizens can obtain confirmation of their permanent residence status under the Free Movement Directive). Importantly, the eligibility criteria will be different. For example, it will no longer be a requirement that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ to be considered continuously resident. The settled status of an individual will be proven by a residence document.

It has been announced that, in order for an Eu citizen to qualify for settled status, post-exit, they will need to have been resident in the UK before a specified date and must be a resident when they make their application. They must have completed a period of five years of continuous residence in the UK. Proof of five years’ residence will be required but the government intends on using existing government data, such as income records, to ease the evidential burden.

EU citizens who were resident in the UK before the specified date but who do not have the required five years’ continuous residence at the time of the UK withdraws from the EU will not be left without rights. They will be able to remain in the UK by applying for temporary status in order to remain resident in the UK until they have accumulated the necessary five years to enable them to get settled status.

However, EU citizens who arrive after the specified date will be granted at least a temporary period in which they can remain and might be eligible to settle permanently in the UK, depending on their circumstances – that will depend on the rules in place at the time at which they apply. These will be decided by the UK closer to the time. It is stated individuals in this category “should have no expectation of guaranteed settled status”.

Many family members will qualify for settled status under the above new rules in their own right. Otherwise, family dependants who join qualifying EU citizens in the UK before the UK’s exit will be able to apply for settled status after five years of residency.

A key issue will be how “the specified date” is determined (unknown at this stage). An assurance has been given that the “specified date” will be no earlier than the 29 March 2017 (the date the process for exiting the EU was triggered) but no later than the date of the UK’s withdrawal from the EU. What that date is will depend on exit negotiations with other Eu countries. As the “specified date” has not yet been set there is still the possibility of a window of time for EU citizens to come and live and work in the UK in order to accrue rights which could potentially lead to settled status. Indeed it has been suggested that the European Parliament would veto any deal preventing EU citizens who move to the UK during the next two years from having the same rights to live and work in the country as those already there.

Contact us

For more information contact Tim Copplestone or Alex Jakubowski in our Immigration team.