EU Rights to Residency
during Transition

1 March 2018

The government has announced that EU citizens and their family members will be able to move to the UK during the transition period on the same basis as they do today.

In what many Brexiteers are classing as a major climb-down by Theresa May, the latest policy statement confirms no new constraints are to be imposed on those EU citizens arriving to either work or study in the UK after 29th March 2019.

Instead, those EU citizens and their families arriving during the implementation period will be eligible to register under a new Home Office system and apply for permanent residency after five years’ continuous and lawful residence.

The document mentions the use of a three-month window to allow applications to be submitted beyond the end of the transition period to ensure that there is no ‘cliff-edge’ scenario and also confirms Irish citizens will not be required to register.

It is thought that this concession has been made because the government is running out of time to decide on its post-Brexit policy and for pragmatic reasons – to avoid the huge cost and difficulties in finding the right staff and resources to administer two separate immigration systems.

The government is attempting to provide certainty for EU citizens planning a move to the UK next year as well as those UK businesses deliberating over the employment of EU citizens during the transition period. But their three page document lacks significant detail and is therefore open to challenge by the EU Commission particularly in relation to the following points:

• The rights to residency for EU citizens arriving during transition will be enforceable in the UK legal system and not the European court of justice; and
• The ability for ‘transitional’ EU citizens to be joined by family members after the implementation period will be determined by the UK government in line with the UK immigration rules, not European law.

The UK government believes this new offer to those EU citizens intending to arrive during transition is a pragmatic step towards implementing a future UK immigration system. We will need to wait to see whether the EU Member States hold a different point of view.

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