The government has set out its proposals for “safeguarding” the position of EU nationals living in the UK. The proposals are vague and will give little comfort to the 3 million EEA nationals living and working in the UK, including those who have already acquired permanent residence.
First and foremost, it is important to remember that EU law will continue to apply to the UK and will govern the rights of EU citizens and their family members to live and work here until the UK withdraws from the union.
However, once the UK has left the EU, free movement rights and any status thereby derived “cannot be carried forward.” All EU citizens and their families in the UK, regardless of when they arrived, will need to obtain an immigration status under UK law, i.e. those eligible or already holding permanent residence will need to apply for “settled status”, whilst everyone else will need to apply for transitional status.
To avoid a cliff-edge, the Home Office will provide a period of blanket residence permission, to start immediately upon the UK’s exit from the union. This generic temporary leave will apply to all EU residents and their family members to give them a grace period between the end of free movement rights and the time they obtain their new UK immigration status document.
The transitional grace period will last for up to two years and is aimed at stemming the barrage of applications for residence documents which is likely to ensue.
Given that today’s proposals are the UK’s starting point for negotiations with the EU, a certain lack of clarity is to be expected. A full analysis of the provisions will take time but here we break down the proposals so far as is possible at this stage.
Decisions on whether EU citizens are granted the right to live in the UK permanently or on a transitional or temporary basis will depend on how long they've been in the UK when a cut-off date, the "specified date", is set. The specified date will determine how EU nationals are treated. The "specified date" has yet to be agreed and will form part of the negotiations, but will be between 29 March 2017 (when Article 50 was triggered) and the formal date of Brexit.
** EU nationals already settled (holding permanent residence) in the UK **
Any EU national or family member holding a document certifying permanent residence will be expected to apply for a new “settled status” document. The government will impose limited application criteria which are likely to be:
(a) ensuring that permanent residence has not been lost by virtue of absence from the UK; and
(b) an assessment of the conduct and criminality of the individual, including not being considered a threat to the UK. Conduct will also include the manner in which permanent residence was acquired.
The application process for securing settled status will be “modernised” and kept “as smooth and simple as possible.” The Home Office does not have a great track record in this respect, see the current 85 page EEA application form!
** EU nationals resident in the UK before the specified date **
If an EU national has not yet qualified for permanent residence under the EEA Regulations, they will become eligible for settled status after 5 years continuous residence.
UK immigration rules on criminality are much stricter than those presently governing EU nationals. It is likely that some EU nationals or their family members who are otherwise eligible for the new “settled status” will be disqualified on criminality grounds, e.g. an individual receiving a magistrate’s court fine for speeding will be ineligible for indefinite leave to remain for 2 years after the date of conviction.
** EU nationals arriving in the UK after the specified date **
Those EU citizens who arrived and after the specified date will be allowed to remain in the UK for at least a temporary period but will only become eligible for settled status if they meet certain criteria yet to be established. The government warns, in particular, that this group should have “no expectation of guaranteed settled status” in the UK.
The criteria for ongoing residence in the UK after the UK’s departure from the union is likely to be that the individuals meet equivalent criteria for residence under the Immigration Rules, e.g. skilled employment with a minimum income threshold or a family relationship with a person present and settled in the UK – see the UK spouse/partner visa category of our web site.
The proposals do not apply to Irish nationals who remain a special case under the Ireland Act. Under the Common Travel Area arrangements Irish nationals can move freely in the UK without restrictions on employment or residence – they are treated as being settled in the UK on arrival.
** Our advice **
Rather than devalue the permanent residence of EU nationals and their family members by making them apply for a new settled status it would make more sense logistically to pass legislation to confer indefinite leave to remain on any holder of a document certifying permanent residence. Matters pertaining to the loss of permanent residence, i.e. absences from the UK, criminality, etc could be handled in the normal manner by application of the returning resident rules.
It is clear that the government considers any status below British citizenship to be a bargaining chip in EU negotiations.
The Home Office fees for applications under UK immigration rules are considerably higher than under the current EEA Regulations and there is no reason to suggest at this point that the Home Office will be overcome with financial generosity.
There is hope that the procedure to transition from permanent residence to settled status will be relatively smooth when compared to establishing a right to settled status in the first place.
We therefore recommend that any EU national or family member in the UK and eligible for permanent residence applies now to secure their status. For those that are eligible and inclined, we recommend proceeding to naturalise as a British citizen as the best way to safeguard your ongoing right to live and work in the UK.
RLegal Solicitors are a boutique firm of specialist immigration solicitors and lawyers, accredited by the Law Society as experts in immigration law. If you require assistance with your immigration matters or are considering an application to the Home Office, please contact us on +44 (0)20 7038 3980, at firstname.lastname@example.org or via our online contact form or chat service.