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Proposed EU citizens’ rights post-Brexit – A certain uncertainty?

Theresa May addressed Parliament on 26 June 2017 to outline the post-Brexit proposal on the status of EU nationals living in the UK. Mrs May said she wanted to give “reassurance and certainty to EU citizens who have made their homes and lives in our country”.  Furthermore, it was made clear that “no EU citizen currently in the UK lawfully will be asked to leave at the point the UK leaves the EU”. 

Mrs May’s offer on EU citizens’ rights indicates that those EU citizens presently lawfully living in the UK can and will be permitted to stay if they wish to do so. However, Mrs May’s offer is caveated with the expectation that the UK expects the million plus UK citizens living in the EU to be reciprocally granted the same reassurance and certainty.

What we know

EU citizens who have lived in the UK for a continuous period of five years will be entitled to apply for “settled status” under domestic law.  This will enable those EU citizens to carry on with their lives in the UK as they were pre-Brexit.  EU citizens with settled status will be “treated as is they were UK citizens for healthcare, education, benefits and pensions”.

For those EU citizens who have been living in the UK for less than five years at a “Specified Date” (yet to be announced but falling between 29 March 2017 and 28 March 2019) they will still be able to continue living and working in the UK.  However, if they wish to continue to do so, they must apply for temporary residency after an initial Brexit grace period has elapsed, which is expected to last up to two years.

The family members of EU citizens living abroad will also be able to come to the UK and apply for settled status. However, this will be on the same terms as exist presently for relatives of British nationals including additional requirements in respect of income and domicile arrangements.

As mentioned, following the specified date a period of “blanket residence permission” will apply to EU citizens in order to give the Home Office time to process applications to stay in the UK rather than there being a “cliff edge”, as many social and political commentators had feared.

So in summary:

  • All EU citizens with five years’ continuous residence will need to apply for new settled status once the process is finalised. This will apply equally to those who have obtained formal Home Office proof of permanent residence. The recent flood of permanent residency applications by EU citizens will therefore have been to no avail.
  • Those EU citizens who are in the UK on or prior to the specified date will be able to remain in the UK for the proposed grace period of up to two years. If during this period they satisfy the five year requirement they can apply for settlement. If they are still short of the five years at the end of the grace period then an application for leave to remain should be made. If granted such leave will then allow for the five year mark to be reached and a settlement application to be made.
  • All applications must be made before the grace period expires.
  • Settlement will remain a route to British citizenship after 6 years’ total residence, if sought.
  • Any EU citizen arriving in the UK after the specified period will be able to remain until the date of Brexit, but after that time whatever regime is decided upon by the Government will then apply to this group and in all likelihood will mirror that presently used for non EEA migrants.

The initial feedback from Europe has been lukewarm. There are already arguments developing as to who will have the jurisdictional authority to protect EU citizens’ rights, with Europe pushing for the Court of Justice of the European Union and the UK demanding unequivocal sovereignty of its domestic courts in this regard.

Europe’s own position and / or proposals are yet to be determined and as always the “Devil will be in the detail”. However, at least a marker has been put down with Mrs May taking a moral high ground by unilaterally detailing proposals in respect of an issue that is of highly significant personal concern for millions across Europe, albeit on a contingent basis.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further