Post-brexit proposal for EU citizens

Having delivered in Brussels last week the framework for a “fair and serious” offer to the 3 million plus EU citizens living in the UK, Mrs May revealed further Brexit details yesterday in Parliament.

The post-Brexit principles set out in a 15 page document centre on allowing ‘qualifying EU citizens’ to gain a new “settled status” after five years’ continuous residence in the UK. This offer is given in the expectation that the EU will agree to reciprocal treatment for UK nationals resident in member states.

The key principles outlined in the government’s publication include the following proposed measures:

• EU citizens who have been continuously living here for 5 years will be able to apply to stay indefinitely by getting ‘settled status’. That means these citizens will be free to live here, have access to public funds and services and apply for British citizenship.
• People who arrived before the cut-off date*, but will not have completed 5 years’ continuous residence here before the UK leaves the EU, will be able to apply to stay until they have reached the 5 year threshold. They can then also apply for settled status.
• People who arrive after the cut-off date* will be able to apply for permission to remain after the UK leaves the EU, under the future immigration arrangements for EU citizens. However, their route to ‘settled status’ is not guaranteed as the future immigration system for EU citizens arriving after the cut-off date* is yet to be determined.
• Family dependants who are living with or join EU citizens before the UK’s exit will also be able to apply for settled status after 5 years in the UK. In these cases the cut-off date won’t apply. However, those joining after the UK’s exit will be subject to post-exit immigration arrangements.

*The cut-off date is yet to be agreed but it will not be earlier than 29 March 2017 (the date Article 50 was triggered) or later than the date the UK leaves the EU.

Applying for a new UK immigration status

The government’s objective is to launch a scheme for people to apply for settled status before the UK leaves the EU. All EU citizens (and their families) in the UK, regardless of when they arrived, will need to obtain a UK immigration status.

The Home Office aim is to make this process as streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules. They expect the new online application system to be up and running in 2018.

Upon the UK’s exit from the European Union, EU citizens will not be required to leave the UK if they do not yet have a document under the new scheme. Instead, a generic (two year) period of temporary leave to remain in the UK will apply to all existing lawful EU residents and their families. This grace period will allow EU citizens time to apply to the Home Office for their individual permission after free movement ends.

For those EU citizens arriving after the cut-off date, their ability to obtain further or indefinite permission to stay will depend on the yet to be determined immigration rules in place at the time they apply.

The EU leaders’ reaction

It is fair to say that the European reaction to the UK government’s proposal has been fairly lacklustre. Guy Verhofstadt, the European Parliament’s Brexit coordinator felt the UK’s proposal included a ‘number of limitations (that) remain worrisome’ whilst Michel Barnier the EU’s chief Brexit negotiator, tweeted: “More ambition, clarity and guarantees needed than in today’s UK position.”

One major sticking point is sure to centre on the future role of the Court of Justice of the European Union (CJEU) in the UK’s domestic affairs. This UK proposal sets out the government’s intention to enshrine these arrangements in UK law and enforce them through the UK judicial system. However, EU leaders are expected to hold out for continued CJEU jurisdiction to govern the legal position of EU citizens currently resident here.

Smith Stone Walters’ reaction

It is important to remember these proposals are Mrs May’s first pitch to her EU counterparts. The proposals are not set in law and, as such, EU citizens living in the UK are not required to take any action at this time. They will continue to have the right to exercise their free movement rights to live and work in the UK up to the point that the UK leaves the EU.

However, the proposals make it clear that all EU citizens (and their families) in the UK, regardless of when they arrived, will, on the UK’s exit, need to obtain a UK immigration status. This applies to even those who have already obtained a certificate of their permanent residence.

The task of safeguarding EU citizens living in the UK and UK nationals living in the EU is therefore set to run and run. We look forward to gaining greater clarity and certainty from both sides in the coming weeks. Hopefully, the decision makers in Brussels and London will recognise that it is in everyone’s interest to resolve this matter sooner rather than later.