However, the proposals are minimalist and leave many questions unanswered. Nevertheless, the UK’s position is for now, simply an opening statement; a negotiating position in response to the EU’s (rather different) proposals. It is too early to say what legal framework will be in place after Brexit for EU citizens and their family members in the UK. Until the final Brexit date, these individuals will continue to be entitled to the protections under EU law.
What do we know about the proposals?
1. EU citizens
- EU citizens who have been living in the UK for a continuous period of five years before the specified “cut-off” date will be entitled to “settled status”. This appears to be an equivalent to Indefinite Leave to Remain status that exists under UK law (they are already entitled to Permanent Residence). Qualifying EU citizens must apply for this “settled” status even if they have already obtained a permanent residence card.
- Some eligibility criteria for permanent residence, including the requirement for Comprehensive Sickness Insurance for students and self-sufficient individuals, may no longer apply for “settled status”.
- EU citizens who arrived in the UK before the cut-of date but have not yet accrued five years continuous residence will need to apply for “temporary” status until they complete the full five years, after which they can apply for “settled” status.
- EU citizens arriving after the cut-off date will be allowed to stay temporarily but they should have ‘no expectation of guaranteed settled status’.
2. Family members
- Family members of those who arrived before the UK exits the EU will be eligible for “settled status” after five years as family members of EU nationals. For those in the UK for less than five years, they will also be allowed to apply for “temporary leave” until they reach the necessary five years for “settled status”.
- Family members arriving after the UK leaves the EU will be subject to the same rules as those joining British citizens, or to the “post-exit immigration arrangements for EU citizens” and should have no expectation of guaranteed settled status.
3. The specified date
- The cut-off date is yet to be decided; it will be no earlier than 29 March 2017 but no later than the date the UK withdraws from the EU- the latter is thought to be more likely.
- There will be an automatic “grace period” of up to 2 years from the date the UK leaves the EU during there will be a voluntary scheme for EU citizens to have a residence document. After this grace period, obtaining the “settled” or “temporary” document will be mandatory.
What do we not know about the proposals?
The proposal leaves a number of questions unanswered. It is still unclear what happens to those EU citizens who have derived rights of residence, or those who have acquired their right of residence through the Surinder Singh route, whereby the British citizen and their EU family member relocates (and moves their ‘centre of life’) to another EU country and later returns to the UK. The proposal suggests that the application process for obtaining “settled” and “temporary” status will be ‘as streamlined and user-friendly” as possible, but gives no detail as to how it might operate practically and what evidence might need to be provided. There is no indication of what the post-Brexit immigration arrangements for EU citizens will look like.
Despite these uncertainties, our advice to clients is to remain calm. It is important to remember that until the final Brexit date, the UK remains part of the EU and EU citizens and their family members continue to be entitled to the rights under EU law.
We continue to advise those who are eligible to secure their permanent residence at the earliest opportunity; it is useful document that recognises existing rights and remains necessary for those wishing to naturalise as British citizens before Brexit.
For those EU citizens wishing to bring family members to the UK, or those with family members who have recently joined them in the UK, matters may be more complicated. Securing their family’s status in the UK will involve a number of tactical decisions that must be considered on a case-by-case basis.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of June 29, 2017.