What Does The Government's New Brexit Guidance Mean For EU Citizens?


The Law Of… Clarifying The Status Of EU Citizens

With the Government recently issuing new proposals on the rights of EU citizens after Brexit, Emma Brooksbank, Partner and Head of Immigration (Leeds), explains how this could impact EU citizens living, working or studying in the UK.

Are My Rights Going To Change Before Brexit?

All EU citizens and their family members who are living, working or studying in the UK whilst it's still part of the EU will continue to have the same rights under EU law as they had before the referendum. Nothing will change until the UK has left the EU.

What Rights Will I Have After The UK Leaves The EU?

The Government recently published some of its proposals on the rights of EU citizens and their family members after the UK leaves the EU in March 2019.

Some of the Government's suggestions include creating new rights for EU citizens who were living in the UK before Brexit. It has also stated that EU citizens and their family members will need to make an application to secure their residence status, including individuals who have a permanent residence card.

This status is referred to as settled status by the Government (this is likely to become known as indefinite leave to remain).

Is Free Movement Going To End After Brexit?

Free movement will no longer exist once the UK leaves the EU, but the Government has confirmed that "migration between the UK and the EU will continue."

Unable to offer further details, the Government stated that it's currently deciding on how migration will work for EU citizens after Brexit, and that its proposals will be published "as soon as possible, allowing businesses and individuals enough time to plan and prepare."

Emma comments:

"This is troubling for many businesses across the UK that rely on recruiting staff from the EU, which are still facing an unstable future. Vague assurances by the Government at this point simply aren't good enough."

Who Will Be Able To Apply For Settled Status?

To qualify for settled status, the Government has stated that EU citizens and their family members need to have been living in the UK lawfully before a "specified date" for at least 5 years.

The Government, however, has not yet confirmed what this specified date will be but it has confirmed that this date will be between March 2017 and March 2019, after which the rights of EU nationals living in the UK are unclear.

EU citizens and their family members who are living in the UK before the specified date but who have not lawfully lived in the UK for at least 5 years will need to apply for temporary residence and stay living in the UK on a lawful basis. You will be able to temporarily stay in the UK to reach the 5-year qualifying point that you need to qualify for settled status.

If you arrive after the specified date, you'll be able to live in the UK with rights under EU law until the date on which the UK leaves the EU.

Concerningly, from March 2019 onwards your rights will be uncertain – you might be able to stay in the UK temporarily and may even have the chance to settle permanently in the UK. But, the Government has stated that this depends on your circumstances at that point in time and hasn't offered any guarantees.   

What Will Happen If The Specified Date Is Before The UK Leaves The EU?

A lot of problems and confusion could be created for EU citizens living in the UK if the specified date is before date on which the UK will leave the EU in 2019. One of the biggest issues is that we could end up with a two-tier system where EU citizens who came to the UK before the specified date have long-term rights and those who arrived after the date might have limited rights.

How Can I Apply For Settled Status?

If you qualify and want to apply for settled status, you'll need to go through a new application process, which the Government will introduce once the proposals are finalised, to secure your status.

Remember that this process is going to be different to the existing permanent residence process in place.

Should I Apply For Permanent Residence Now?

At this point, the Government has said that it's going to put a more streamlined process in place for future applications for settled status when switching from the existing permanent residence status.

Emma comments:

"The Home Office proposes to deal with around 3 million applications so it remains to be seen how streamlined the process will be in practice."

In the meantime, EU citizens and members of their family in the UK can choose to apply for permanent residence and can then switch to settled status at a later date. Or, you have the option of waiting until the Government releases more details on the specified date and the process of applying for settled status.

Non-EU citizens, such as the family members of EU citizens, must still have a residence document that proves their right of residence in the UK, so might apply for permanent residence now if they qualify.

Have The Government's Proposals Improved The Position For EU Citizens In The UK?

Making it a requirement for EU citizens living in the UK to apply for settled status has added even more uncertainty to their future position in the UK.

There's been some good news for EU citizens who have been classed by the Government as "economically inactive" (such as students, self-sufficient people, and stay-at-home parents and carers). These individuals won't have to provide the Government with evidence that they have previously had comprehensive sickness insurance during their qualifying period of residence in order to qualify for settled status.

How Long Will I Have To Apply For Settled Status After Brexit?

EU citizens in the UK who qualify for settled status will have "adequate time" to apply for their residence status after Brexit, according to the guidance. No further details or clarity on this have been offered.

If I'm Granted Settled Status In The UK, Which Rights Will I Have?

If you're an EU citizen and you gain settled status in the UK, you'll:

  • Still have the same rights as British nationals to live, work and access benefits and healthcare
  • Be able to apply for British citizenship
  • Have the right to apply for British citizenship – but you'll most likely need to have had settled status in the UK for 12 months before you can apply

Can My Family Members Join Me In The UK?

If you qualify for settled status and members of your family join you in the UK before it leaves the EU, they will be able to apply for settled status after 5 years of living in the UK.

But, if your relatives join you in the UK after the date specified by the Government then they'll be subject to a different set of rules.

If you're concerned about how this could affect your family, one of Simpson Millar's immigration experts will be able to offer you advice about your situation on 0808 129 3320.

How Will Brexit Affect Student Loans For EU Citizens?

If you're a student from the EU and are either currently studying in the UK or you're planning on starting a course in the 2017/2018 and 2018/2019 academic years, you can still apply for higher education and further education student loans and 'home fee' status for the duration of your course.

You will also be able to complete your course entirely in the UK.

Emma explains how Simpson Millar can help you:

"Although this guidance offers some reassuring news on the position of EU citizens and their family members post Brexit, there's still a lot of questions that the Government hasn't addressed."

"A real sticking point in the negotiations will be an agreement over which body has oversight over the rights of European nationals in the UK, with Theresa May favouring the national courts and ultimately the Supreme Court, the EU favouring the ECJ, and David Davidson suggesting a new International Court."

"Clearer policy announcements are desperately needed, such as providing more certainty over the future status of family members of EU nationals who are not themselves European."

"We note that the proposal is contingent on reciprocal arrangements being agreed for British nationals living in Europe. We would welcome an unconditional statement from the Prime Minister, guaranteeing the rights of Europeans in the UK."

"Another real concern is that this statement gives no insight on the Government's future plans for immigration control for European nationals."

 "It also doesn't deal with how British businesses, including key industry sectors such as agriculture, manufacturing and the digital/tech industry, will ensure they can retain their vital workforce. UK-based businesses need clear policy announcements on this point to enable them to plan for the changing structure of their workforce, if they are to lose the availability of skilled workers from the EU."

 "If you're worried about how this guidance will affect you and your relatives, our specialist immigration department is known for its expertise in European law, and can offer you a range of services."

You can also keep up with the latest immigration updates in our Brexit newsletter, and find out how they affect your future.

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