UK Government proposal for safeguarding the status of EU nationals in the UK

The Government published its proposals on 26 June 2017 in respect of the status of EU nationals in the UK post-Brexit. The proposals form the basis for negotiation with the EU and essentially ensure that EU nationals who are in the UK prior to the cut-off date will be able to secure settled status here via a new application process that is to be introduced.

The cut-off date itself has yet to be decided, but will be no earlier than 29 March 2017 and no later than the date of the UK’s withdrawal from the EU.

Key points of the proposal are as follows:

  • All EU citizens (and their families) in the UK will need to obtain an immigration status in UK law at the point the UK exits the EU. This is regardless of when they arrived and includes those EU nationals who have already obtained a certificate of their permanent residence under the current regulations.
  • Documents certifying permanent residence will not be automatically replaced with a grant of settled status, but the administrative procedures which EU nationals will need to comply with in order to obtain these new rights will be ‘modernised and kept as smooth and simple as possible’. 
  • Similarly, the Government will aim to simplify the process for new applications for settled status. For example, the Home Office could use existing government held data, such as income records, to minimise the burden of documentary evidence required from the applicant. It will still be necessary for passports to be submitted with applications and most likely biometric data as well in order to protect against fraud. There will be a fee for the application which will be set at a ‘reasonable level’.
  • Since the application process will be a separate legal scheme, the eligibility criteria will be tailored. For example, applicants who have been economically inactive for a period of time will no longer be required to evidence that they have previously held comprehensive sickness insurance in order to be considered continuously resident. This should provide some degree of reassurance to EU nationals in the UK who have spent some time here as a student, for example, who under the current system are being asked to evidence that they held such insurance.
  • All qualifying EU citizens will be given adequate time to apply for their new residence status. There will be no ‘cliff-edge’ (see grace period below).

Securing settled status

For those EU nationals who arrived before the cut-off date:

  • To qualify, EU citizens must have been resident in the UK before the cut-off date and must have completed a period of five years’ continuous residence in the UK before they apply for settled status, at which point they must still be resident.
  • For EU citizens who arrived and became resident before the cut-off date but who have not accrued five years’ continuous residence at the time of the UK’s exit, they will be able to apply for temporary status in order to remain resident in the UK until they have accumulated five years, after which they will be eligible to apply for settled status.

For those EU nationals who arrived after the cut-off date:

  • EU citizens who arrived after the cut-off date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status.

For non-EU national family members:

  • Family dependants who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after five years (including where the five years falls after exit), irrespective of the cut-off date.
  • Those joining after our exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the cut-off date (which are yet to be decided).

Grace period

It will be impractical for the Home Office to issue a high volume of residence documents immediately after the UK leaves the EU, but it will be necessary to avoid a legal gap between the end of free movement rights and the point at which individuals apply for and obtain UK immigration status. The Government will therefore bridge this gap by providing a period of blanket residence permission, to start immediately upon the UK’s exit from the EU.

This will be a generic ‘umbrella’ of temporary leave applying to all existing lawful EU residents (and their families), to give them a grace period between the moment that free movement ends and the time they obtain their residence document.  This will allow EU nationals to remain lawfully in the UK and continue to undertake their lawful business during that interim period – they will not be required to leave the UK at the point the UK leaves the EU. The grace period of blanket permission will last from exit day for a fixed period of time, which is yet to be confirmed but is expected to be up to two years. Applications made during the grace period will be done so on a voluntary basis and the scheme should be operational some time during 2018. Once the grace period expires it will then become mandatory for EU nationals in the UK to apply for a residence document to confirm their status, if they have not done so already.

The publication of the proposal will be welcome news to many as we finally have a more concrete indication of how the future of EU nationals in the UK will look from an immigration perspective post Brexit, but of course it does all rely on the forthcoming negotiations and the UK Government being able to secure a similar deal for UK nationals living and working in the EU.

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