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BREXIT - The State of Play for Citizens' Rights [UPDATED]

[This post has been updated to reflect the release of the UK government's Statement of Intent on the EU Settlement Scheme on 21 June 2018.]

When it comes to Brexit, one of the EU27's core negotiating principles, as set out in the European Council's April 2017 negotiating guidelines, is that "nothing is agreed until everything is agreed". As of now, there is no legally binding withdrawal agreement between the UK government and the EU27, and so any statements from either side are positions or proposals, subject to further negotiation.

It is also important to note that the UK government will have to conclude separate agreements with (non-EU) EEA countries - Iceland, Liechtenstein, Norway and Switzerland - on the status of their citizens who are resident in the UK.

Here we look at the UK government's and the EU27's policy positions on citizens' rights today, and how they got to this point. We then suggest some actions that those affected should consider taking in light of these negotiating positions.

Timeline of Position Statements

Over the last year, several documents have been issued by both the UK government and the institutions of the EU, addressing the implications of Brexit for EU citizens in the UK and UK citizens in the EU.

June 2017

The UK Government published its proposals on "Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU", outlining its proposal to offer "settled status" under UK law to EU citizens and their families resident in the UK before the 29 March 2019 ("Brexit Day").

December 2017

The UK and EU published a Joint Report on progress during phase 1 of negotiations under Article 50 of the Treaty on European Union (TEU), including details on the post-Brexit rights of UK and EU citizens for inclusion in the final Withdrawal Agreement.

As of the end of 2017, the UK government had proposed that:

  • EU citizens who have been continuously resident in the UK for five years, with or without a permanent residence document, would have to apply for settled status, under UK law, within about two years after Brexit Day, in order to remain in the UK;
  • The "settled status" application would be available from the end of 2018, would not be excessively expensive and would require only an ID document, a photo and a declaration of any criminal convictions;
  • Those who have already obtained a permanent residence document would not have to pay a fee for "settled status".
  • Those who have been resident for less than five years would be able to apply for temporary status, also under UK law, while they accumulate five years residence to qualify for settled status;
  • EU citizens who are resident in the UK before Brexit Day could be joined after Brexit Day by certain family members to whom they have been related since before Brexit Day (and by their natural or adopted children born after Brexit Day);
  • Those with settled or temporary status could continue to access UK benefits at the same level as currently;
  • The withdrawal agreement would not affect the Common Travel Area between the UK and Ireland, so that Irish citizens would not be required to apply for settled status, or to register, to move to or remain in the UK;
  • UK nationals resident in an EU member state on Brexit Day might need to apply for a residence status (similar to "settled status") and could be joined by family members after the UK has left.
  • During a transition period, UK immigration rules would prevail, only allowing permanent residence to highly skilled EU citizens, only allowing free movement to those who come with a confirmed job offer and imposing a time limit of two years to EU citizens coming or low-skilled jobs.

28 February 2018

The EU27 produced a draft Withdrawal Agreement, a translation of December's Joint Report into legal language, with some new and controversial details on citizens' rights which are still subject to further negotiation.

The draft agreement proposed that:

  • EU citizens who have resided in the UK, and vice versa, for a continuous period of five years under EU law, should have the right to permanent residence under EU law and this will be maintained under the relevant case law of the Court of Justice of the European Union;The UK (or another host state
  • EU citizens resident in the UK, and vice versa, after Brexit Day can be joined by dependent family members to whom they are related at the time of the family application (rather than on Brexit Day);
  • All EU citizens arriving in the UK, and vice versa, during the transition period should have exactly the same rights, under European Law, as those who arrived before Brexit Day, and should therefore be covered by the Withdrawal Agreement, rather than by any separate UK transitional rules;
  • UK nationals living in an EU member state on Brexit Day will lose their freedom of movement rights across other EU member states, after the transition period.

The UK government did not publish their own draft agreement, but did publish a three-page policy paper on "EU citizens arriving in the UK during the implementation period'', also on 28 February 2018, to respond to the EU27 draft agreement, and updated its guidance for EU citizens in the UK and UK nationals in the EU.

In this policy paper, the UK conceded that:

  • During any transition period, EU citizens and their family members would be able to come to the UK, and UK nationals move to EU, on the same basis as they do today;
  • However, EU citizens arriving in the UK during this period would have to register with the UK authorities if they intend to stay for over three months; could be joined by family members "on a par with British citizens" (i.e. requiring minimum earnings threshold of £18,600); and would be able to apply for temporary status while they accumulate five years residence to qualify for indefinite leave to remain (rather than "settled status") in line with non-EEA citizens currently.

1 March 2018

However, this UK counter-offer was almost immediately rejected by the Brexit Steering Group of the European Parliament, which stated that:

"we cannot accept any form of discrimination between EU citizens who arrive before or after the start of any transition. The full European Union acquis must apply during any transition, including for citizens, and no differentiation can take place. It can certainly not be the case that EU citizens arriving during any transition are forced to accept a lower standard of rights, in particular those relating to family reunion, child benefits and access to judicial redress via the European Court of Justice."

[UPDATE 1]

19 March 2018

The EU and the UK government released a new draft of the Withdrawal Agreement, including agreed legal text on the transition period, citizens’ rights, and the financial settlement, as well as a significant number of other articles.

The UK negotiators had now agreed that EU citizens arriving in the UK during the transition period would have the same rights and guarantees as those who arrived before Brexit Day, thus abandoning the position set out in the 28 February policy paper.

[UPDATE 2]

21 June 2018

The UK government released a Statement of Intent and draft Immigration Rules setting out more details of how the EU Settlement Scheme will work, based on the draft Withdrawal Agreement released in March 2018, and subject to parliamentary approval.

From 21 July 2021, EU citizens and their family members who wish to live and work in the UK will have to hold or have applied for “settled status”, based on the legal status “indefinite leave to remain”, if they have lived in the UK for five years, or “pre-settled status”, based on “limited leave to remain”, for those who have lived in the UK for less than five years.

The Statement of Intent clarifies that the application will cost £65 (the same as the current fee for a permanent residence document) or £32.50 for children under 16, and that the scheme will be “fully open” by 30 March 2019, although it will be “phased in” starting before the end of 2018.

The Statement of Intent also states that:

  • The scheme will be optional for Irish nationals;
  • The scheme will be open for nationals of Iceland, Liechtenstein, Norway and Switzerland “on a similar basis as for EU citizens” (subject to further negotiation);
  • The scheme will be open to “Surinder Singh” family members (non-EU national family members of British citizens who are lawfully resident in the UK by the end of the implementation period on 31 December 2020, by virtue of regulation 9 of the EEA Regulations);
  • Holders of pre-settled status will be able to apply for settled status free of charge once they qualify;Holders of indefinite leave to remain or a permanent residence document will be able to exchange this for settled status free of charge;
  • The deadline for applications for those resident in the UK by the end of 2020 is 30 June 2021;
  • Those who are continuously resident in the UK but who happen to be abroad when the post-Brexit transition ends on 31 December 2020 will be covered by the scheme;
  • EU citizens will not be required to show that they have met the current requirement to have held comprehensive sickness insurance;
  • A non-EU national family member of an EU citizen, who does not already hold a permanent residence document, will need to provide evidence of their relationship to the EU citizen, and evidence of the EU citizen’s identity, nationality and continuous residence in the UK, such as their own settled status;
  • Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident in the UK after the end of the transition period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected;
  • The UK government does not intend to issue any physical document to EU citizens with settled or pre-settled status;
  • The Statement of Intent contains no further details of the arrangements that will be in place for UK nationals living in the EU.

What can I do now?

These points again carry the disclaimer that “nothing is agreed until everything is agreed.”

  • Until the EU settlement scheme is implemented, EU citizens in the UK, and their family members, may qualify for a permanent residence document if they have been resident in the UK for at least five years continuously (not having spent more than six months outside the UK in any 12-month period of that five-year period) as a student, a worker, self-employed or self-sufficient, or a family member of one of these. The requirement to hold comprehensive sickness insurance (CSI) during this five-year period may apply.
  • EU citizens in the UK who have already obtained a permanent residence document will have to exchange this for "settled status", once this scheme is available. Those who already have indefinite leave to remain will be able to exchange this for settled status if they like. These EU citizens do not need to do anything yet.
  • EU citizens who qualify for permanent residence in the UK, but do not yet have a permanent residence document, can apply for one at a cost of £65. This document will not be required in support of a settled status application but can be exchanged for settled status free of charge, once the EU settlement scheme is implemented.
  • Non-EEA national family members of EU nationals applying for a permanent residence document will need to submit proof of their immigration status – such as a UK residence card.
  • Note that, due to a recent increase in applications, permanent residence document applications may take up to six months or longer to be processed.
  • UK nationals resident in an EU member state should consult an immigration specialist to ascertain whether a permanent residence application is necessary or advisable in their situation.

The information in this alert was provided by Newland Chase.

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2017 Peregrine Immigration Management Ltd.