This week, the government published its policy paper for managing the immigration status of EU nationals in the UK after Brexit. The policy paper is still to be negotiated with the EU but it confirms that once the UK has officially withdrawn from the EU (which could happen at any point on or before 29 March 2019), existing residence documents such as those certifying permanent residence, would be invalid. Instead, all EU nationals and their family members would need to apply for new residence documents.
The main feature of the paper is the offer of ‘settled status’ for EU nationals as well of nationals of Norway, Iceland, Liechtenstein and Switzerland, who have been living legally and continuously in the UK for at least 5 years. Those with settled status (UK’s equivalent to Indefinite Leave to Remain) will be entitled to use public services and receive benefits, including pensions and healthcare on the same basis as British citizens. They would also be able to naturalise as British citizens.
EU nationals and their family members who have less than 5 years residence and who arrive lawfully before the ‘cut-off date’ (which is yet to be decided) would be able to stay in the UK and acquire their settled status (by making up the 5 years). They would in effect be given a temporary status until they have accumulated 5 years after which they can apply for settled status.
For those arriving in the UK lawfully before the cut-off date, there would be a 2-year grace period allowing them to remain for a temporary period – they may become eligible to settle permanently, depending on their circumstances but they “should have no expectation of guaranteed settled status”.
All EU nationals and family members, regardless of whether they hold permanent residence documents will be expected to apply.
The new “user friendly” system which is expected to be implemented mid next year, will be “modernised” and intended to keep the process “as smooth and simple as possible.” The government intends to use existing government data such as income records to reduce the documentary evidence required.
Application fees would apply and be set at a “reasonable level.”
Should EU nationals continue to apply for Permanent Residence documents?
This is a difficult question to answer and really depends on an individual’s circumstances. Although existing EEA documents are expected to be invalidated, those wishing to apply for British citizenship before the new system comes in place next year will still need a document certifying their permanent residence.
Those who have strong family and/or business ties and have been in the UK for a significant period of time, may opt to naturalise as British citizens. Although you can do this with ‘settled status’, you’d have to bear in mind that the offer is not unilateral – it is dependent on UK citizens living abroad getting a reciprocal deal from other EU states.
So there’s still some uncertainty…
European Council President Donald Tusk believes the offer is “below expectations” and raises significant questions. The offer lacks clarity in comparison to the EU’s detailed offer at the end of May.
We don’t know when the cut-off date will be; the UK has suggested it could be anywhere between March 2017 (when Article 50 was triggered) to March 2019 when we actually leave the EU.
More importantly, one of the greatest areas of dispute is likely to be how new rules will be enforced and how negative decisions will be challenged. The paper confirms that the new arrangements will be enshrined in UK law and enforceable through the UK judicial system, up to and including the Supreme Court. Any negative decisions on applications could therefore not be appealed to the European Court of Justice (ECJ).
We intend to continue reporting on future developments.