Philip Trott on Brexit: ‘Nothing is agreed until everything is agreed’

This article originally appeared in AILA’s March 2018 newsletter. 

Key themes

Almost two years after the United Kingdom voted by referendum to leave the European Union, the first phase of negotiations between the UK and the EU came to a conclusion. On 8 December 2017, the negotiators of the UK and the EU published a joint report setting out the agreement reached in three areas, including the controversial issue of protecting the rights of EU nationals in the UK post-Brexit.

What has been ‘agreed’ so far?

Firstly, it is important to note the caveat inserted at the very beginning of the joint report: that ‘nothing is agreed until everything is agreed.’ Although the report reflects agreement ‘in principle’ on key issues of citizens’ rights following Brexit, nothing is set in stone until final agreement is reached in all matters pertaining to the UK’s withdrawal and those agreements are enshrined in law.

Keeping that in mind, what does The Prime Minister Theresa May on behalf of the UK Government has guaranteed since 19 October 2017 that EU nationals currently living ‘lawfully’ in the UK would be able to stay here. The joint report builds on this and separates EU nationals into categories depending on when they arrive(d) in the UK. The determinative date will be 29 March 2019, the date of the UK’s formal withdrawal from the EU (exactly two years after the UK formally notified the EU of its intention to withdraw).

Currently, EU nationals who have been living in the UK for five continuous years (as workers, self-employed, students, job-seekers or self-sufficient) automatically acquire ‘permanent residence’ status which allows them to remain in the UK indefinitely and apply for British citizenship after one year of further lawful residence. A new ‘settled status’ is to be introduced to replace permanent residence. The plan is for this to involve a streamlined, low-cost and user-friendly application process.

Those who have been continuously and lawfully living in the UK for five years by 29 March 2019 will be able to obtain settled status and stay in the UK indefinitely.

Those arriving in the UK by 29 March 2019, but who have not been here for five continuous years, can apply to stay in the UK until they reach the five year threshold and then apply for settled status.

Family members who live with or join EU nationals in the UK by 29 March 2019 will also be able to apply for settled status after five years here.

Questions left unanswered

The agreement outlined above by no means represents a done deal. As March 2019 approaches, negotiators of the UK and the EU continue to be at odds regarding matters not covered by the joint report.

The report does not address the future immigration system that will apply to EU nationals arriving in the UK after 29 March 2019.

The EU had been seeking at least a two year transition period following March 2019 in which free movement rights would continue. However, on a visit to China in January 2018, Theresa May announced that she will not guarantee that free movement rights of EU nationals will not end on 29 March 2019.

EU nationals concerned about their status in the UK post-Brexit should seek to obtain confirmation of their status here before the new settled status system is introduced. In particular, those who have already acquired permanent residence should obtain a permanent residence card (for an application fee of £65.00) to prove that they fall within the category of EU nationals entitled to apply for the new settled status immediately.

There is an ongoing debate that those with permanent residence already do not need to make any application at all as they have a status enshrined in English law, which save in limited circumstances cannot be taken away from them.

Remember, nothing is agreed until everything is agreed!

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 March 6, 2018.