EU Nationals in the UK: The Government's post-Brexit offer... What next?
On 26 June 2017, the Government published its proposals outlining how it intends to protect the rights of EU Nationals living in the UK.
The document confirms the current position, namely that until the UK withdraws from the EU, EU law will continue to apply and the rights of EU Citizens and their family members to live and work in the UK remain unchanged.
The document then goes on to confirm that after the UK leaves the EU, new rights in UK law will be created for qualifying EU Residents. In summary a new "settled status" for EU Citizens who arrive in the UK before the "cut- off date" will be created and all EU Citizens and their families will need to apply for a new residence document.
The "cut- off date" is not specified but will be "no earlier than 29 March 2017", the date when Article 50 was triggered to begin the formal process for exiting the EU.
EU Citizens who have "resided" in the UK ("residence" is not defined in the paper) for 5 years and continue to do so will be entitled to "settled status" under UK law. Those who arrived before the "cut- off date" but have not lived in the UK for 5 years will be allowed to remain until they have reached 5 years. In the meantime, they will be given "temporary status" and thereafter will be able to apply for "settled status". No details as to what the "temporary status" will mean are provided.
Those who arrive after the "cut- off date" will be able to apply for permission to remain in the UK (after the UK leaves the EU) under future immigration arrangements for EU Citizens which have not been worked out yet.
Family members who live in the UK with their EU National family members or join them before the UK leaves the EU will also be able to apply for "settled status" after 5 years and the "cut- off date" will not apply to those individuals.
There will also be a grace period of up to 2 years after the UK leaves the EU during which citizens will have to apply for a residence document. The grace period has not been specifically defined as yet. If an EU National has not applied for and received this document by the end of the grace period, they will no longer have permission to remain in the UK.
Treatment of EU nationals
The paper states that EU Nationals with "settled status" will be treated like a comparable UK National and have access to UK benefits "on the same terms as comparable UK residents". EU Nationals should therefore be able to use public services, healthcare and other benefits that British citizens have access to. Those who have "settled status" and at least 6 years' residence will also be eligible to apply for British citizenship.
Applications for "Settled Status"
The proposals make it clear that all EU Citizens and their families will need to apply to the Home Office for permission to stay in the UK and for a new residence document to demonstrate their settled status. This includes those who have already applied for and received permanent residency cards. The proposals do state that for those people, it is hoped that the process will be as streamlined as possible.
The new process is expected to go live in 2018. No details have been given about the application process but the Government proposals state:-" Our aim is to make the application process as user friendly as possible".
The Government has stated that all qualifying EU Citizens will be given time to apply for their new residence status after the UK's exit and that it wishes to avoid a "cliff-edge" at the point that the UK leaves the UK.
The proposals make it clear that after Brexit, the UK will no longer be subject to EU laws and that the scheme which will be established for applications for EU Residents for permission to stay will not be legally the same as the one currently available for those wishing to obtain confirmation of their residence status under the Free Movement Directive. The proposal also states that the Court of Justice of the European Union will not have jurisdiction over the UK which means that the European Court case law would not be directly applicable to the new "settled status" regime. The question as to whether the UK courts or the European Court would enforce the new rules remains unanswered.
The process to obtain the new "settled status" would include an assessment of conduct and criminality including not being considered a threat to the UK. "Settled status" could also lapse if the holder stays outside the UK for a continuous period of more than 2 years, unless they have strong ties to the UK. This suggests that the Home Office could have discretion in refusing applications from EU Citizens and something more akin to the current UK immigration rules where indefinite leave to remain can lapse in the same way.
The proposals raise more questions than they answer and seem rather vague in many areas. The devil will be in the detail of course. Many points need answering such as the "cut- off date" and future immigration arrangements after Brexit for EU Nationals to name a few.
The proposals only represent the UK's opening gambit in the negotiations and we wait to see how those will progress. So far they have been given a rather lukewarm reception by the European Union.