10th July 2017
Subject to agreeing a reciprocal deal covering more than one million British citizens living in other EU countries, the UK Government intends to give approximately three million EU citizens the right to stay, as predicted in our Article 50: Immigration Impact and Implications article.
EU citizens looking to stay in the UK after 29 March 2019 (EU exit day) will be given a “grace period” of up to two years from a “cut-off” date yet to be specified in which they will have to apply for a new “settled status”. This status will give them the right to live in Britain, access public funds and apply for British citizenship later if they so wish.
They will have to make an application before the grace period expires, however, unless they are from the Irish Republic. Settled status will not be conferred automatically, even if EU citizens already have permanent residence documents, but the application process will be more streamlined. A fee will be payable.
The window for applications is not yet open. When it does open, the grace period will give EU citizens plenty of time to arrange their settled status in the UK. It will also give the Government much-needed time to process an extremely large number of applications, to capture EU citizens’ biometric information during the application process, and to ensure that those granted settled status are given access to the full range of rights available to British citizens.
The UK’s offer
EU citizens who arrive before the “cut-off” date and have five years’ continuous residence in the UK will be eligible to apply for settled status.
EU citizens who arrive before the “cut-off” date but who don’t have the requisite five years’ continuous residence by EU exit day will be able to stay until they reach it and then apply for settled status. This would apply even if the EU citizen arrives one day before the “cut-off” date. However, they must apply for a temporary residence document before the grace period expires.
Settled status can be lost. It will be lost if the individual is absent from the UK for more than two years unless the individual maintains strong ties with the UK. This is one of the points of difference with the EU. Another concerns oversight by European courts of the legal rights of EU citizens living in the UK after Brexit.
The “cut-off” date
The Government is clear that all those who arrived from the EU before 29 March 2017, the date when the UK formally served notice under Article 50 of its intention to leave the EU, will be entitled to stay and apply for settled status.
The “cut-off” date, after which EU citizens arriving in the UK will no longer be entitled automatically to stay in the UK, has not yet been specified. If the “cut-off” date falls on EU exit day, however, as the EU demands, freedom of movement may effectively continue until 2021 because of the grace period. EU citizens arriving after the grace period expires will have to apply for a temporary residence document in accordance with the rules in force at that time.
Rights of EU citizens with settled status
EU citizens with settled status will be treated like British citizens. They can work or study in the UK without immigration restrictions and will continue to have broadly the same access to healthcare, education, benefits and pensions. This is in the expectation that those rights will be reciprocated by the EU.
Family dependants who join an EU citizen in the UK before EU exit day will also be eligible to apply for settled status after five years (including where the five years falls after EU exit day). This includes non-EU national family dependants.
After EU exit day, EU citizens with settled status will be able to bring family dependants from overseas on the same terms as British nationals. This may include income tests and language assessments.
Currently the £18,600 minimum income threshold for British citizens who want to bring in a spouse from outside the European Economic Area rises to £22,400 if the couple has a child who does not have British citizenship, with additional amounts for each subsequent child. Rolling out this scheme to close family members of EU migrants may have an impact on sectors currently reliant on low-skilled EU workers such as agriculture, social care and construction.
As an alternative, family dependants joining an EU citizen in the UK after EU exit day will be subject to the immigration arrangements for EU citizens who arrive after the “cut-off” date. These have not yet been specified.
The Government's proposals have not gone far enough for some in Brussels. The European Parliament's Brexit Coordinator, Guy Verhofstadt, has criticised the lack of clarity in respect of the “cut-off” date and commented that this should not be before Britain exits the EU. Others, such as MEP Claude Moraes, Chairman of the European Parliament's Civil Liberties, Justice and Home Affairs Committee, have said that the introduction of a minimum income threshold will threaten EU citizens' rights of family reunification.
It is clear that the negotiations ahead will be long and hard-fought. Whilst the Government had hoped to have an early agreement on the issue of EU migrants to clear the path for negotiations on other aspects of Brexit, and had conceded some ground on citizens’ rights to that end, early agreement on this is looking unlikely.
For further information about anything contained in this article, or to discuss the possible immigration aspects of Brexit in more detail, please contact Andrew Dekany or Maria Krishnan in Thrings’ Immigration team, or visit the immigration section on our website.