Analysis: Government proposal on EU citizens’ position post-Brexit

On 26 June 2017, the Home Secretary presented to Parliament the Government’s proposal on the rights of EU citizens living in the UK after Brexit, previously proclaimed by the Prime Minister at the EU leaders’ summit in Brussels the week before.

The proposal’s potential to secure some long-overdue certainty with regard to the rights of the 3 million EU citizens already residing in the UK and those arriving before Brexit is tenuous, if only because it is still just a proposal; it will be subject to the withdrawal negotiations and Brussels’ approval. Nonetheless, it is useful to examine, as it provides an insight into the starting point of those negotiations and the possible concessions that the UK Government is willing to make (if not the red lines that it has set).

The proposal is centered around the establishment of a new “UK settled status" for certain EU citizens and their families after Brexit. The eligibility for that new form of settlement, governed entirely by domestic law, involves the nebulous notion of a “specified date”.

The specified date (or “cut-off date”, unofficially) will be no earlier than 29 March 2017 and no later than the date of withdrawal of the UK from the EU (“Brexit”). At best, it will coincide with the latter. At worst, it may have already passed. The actual date, which is – ironically – currently unspecified, is predicted to be a point of contention within the UK-EU negotiations.

The proposal also refers to a “grace period of blanket permission”. That period, which will begin immediately upon Brexit and will last for a yet-unspecified period, will be a period of leave applying to all EU citizens and their family members residing in the UK at the point of its commencement and will allow them to remain lawfully and work in the UK after Brexit without the need for an application (but by whose end an application for settled status or temporary leave needs to be made). It is expected to be up to two years.

The specified date will be crucial in determining the status of EU citizens and their families post-Brexit. A guide to the proposed criteria is set out below:

EU citizens:

• For EU citizens residing in the UK before the specified date:
  • If they have or will have acquired 5 years’ continuous residence in the UK before Brexit or before the end of the grace period – they are eligible to apply for settled status (and have to apply by the end of the grace period);
  • If they will have not acquired 5 years’ continuous residence in the UK by the end of the grace period – they are eligible to apply for temporary leave by the end of the grace period in order to remain in the UK and apply for settled status at the 5 year point.

• For EU citizens arriving in the UK after the specified date: Their residence rights will be governed by the existing EEA Regulations until the point of Brexit. After that, the grace period will apply to allow them to remain lawfully in the UK. They will then need to apply for leave (prior to the end of the grace period) if they wish to remain in the UK after the end of the grace period. Unlike EU citizens residing in the UK before the specified date, whose continuing leave is guaranteed, for those arriving after the specified date, their ability to obtain further leave after the grace period will depend on yet-undetermined rules.

Family members of EU citizens:

• For family members of EU citizens who reside in the UK before the specified date:
  • If they have or will have acquired 5 years’ continuous residence in the UK before Brexit or before the end of the grace period – they are eligible to apply for settled status (and have to apply by the end of the grace period at the latest);
  • If they will have not acquired 5 years’ continuous residence in the UK by the end of the grace period – they are eligible to apply for temporary leave by the end of the grace period in order to remain in the UK and apply for settled status at the 5-year point –

Provided they have been in a genuine relationship with an EU citizen while resident in the UK – a footnote in the proposal indicates that this includes direct family members, including those with retained rights, and indirect family members ONLY if their residence has previously been facilitated by the Home Office (implying they will need to have previously been issued with a family permit, residence card, or permanent residence card)

• For family members of EU citizens residing in the UK before the specified date, but who themselves arrive in the UK after the specified date: They will either be subject to the normal immigration requirements applying to family members joining British and settled citizens, or the undetermined rules governing the leave for EU citizens arriving after the specified date.

• Children of EU citizens eligible for settled status (or temporary leave) will also be eligible to apply for the same, regardless of whether they were born or arrived in the UK before or after the specified date. Children born in the UK to EU citizens with settled status will automatically acquire British citizenship.

10 Key Points:

1. Free movement rights will continue to apply as they do now until the date the UK leaves the EU.
2. The new domestic status of EEA nationals will not be inherent and automatic, unlike current residence rights from the EU Treaties. The new status will be subject to applying successfully and obtaining leave (temporary or settled status).
3. Every EU citizen and family member will need to apply under the proposed new domestic regime for settled status (or temporary leave) regardless of whether they already possess residence or permanent residence documentation under the EU free movement rules.
4. The new application regime will not be the same as that for permanent residence and will have (yet undetermined) requirements that might not mirror those of the latter. The proposal seems to explicitly indicate that the previous possession of Comprehensive Sickness Insurance for EU students and self-sufficient persons will not be necessary for the calculation of the continuous period of lawful residence within the context of the new application regime – whilst the same requirement has been the reason for refusal of many applications by EU citizens in the UK until now.
5. The proposal indicates that the fees of the new application regime will be set at a reasonable level. There is no indication as to whether they will be lower or higher than the current permanent residence application fees, despite promises that the application process will be more “streamlined and user-friendly”. It seems likely that the fees will be higher, as EEA fees are currently significantly lower than those of other Immigration applications.
6. Apart from the requirement of 5 years’ continuous residence, the proposal indicates another criterion, subject to which an individual could obtain settled status: an assessment of conduct and criminality. Whilst the EU free movement rules have provisions for the exclusion and expulsion of EU citizens on the grounds of public policy, public security and public health, those are much more limited than the stringent domestic suitability criteria applying to applications for leave by non-EU citizens.
7. There is no reference to continuing rights that are currently deriving directly from the EU Treaties and not the Citizens’ Directive, such as Surinder Singh rights of the family members of British nationals or those of non-EEA nationals relying on Derivative Residence Card based on Zambrano, Chen or other derivative routes.
8. The enforcement of the proposed continuing rights under domestic law will take place within the UK judicial system exclusively. The Government seems to be setting a red line as to the exclusion of any residual jurisdiction of the Court Of Justice of the European Union in the UK – a red line which seems certain to find strong opposition in Brussels.
9. Whilst the grace period will provide for continuous lawful residence after Brexit without the need for an application while in force, a voluntary scheme to apply for settled status is proposed to be in place before Brexit, for those who wish to do so.
10. Applications for British citizenship may be made after the grant of settled status, as this will be treated as indefinite leave to remain pursuant to the Immigration Act 1971.

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