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Analysis: what is the UK proposing for EU citizens in the UK and British citizens in the EU?

Analysis: what is the UK proposing for EU citizens in the UK and British citizens in the EU?

On 26 June 2017, over a year after the Brexit referendum result, the government finally published its proposals to “safeguard the position of EU citizens living in the UK and UK nationals living in the EU”. Here we take a look at the details of the proposals.

It is important to remember that at the moment these are just proposals by the UK. They have been tabled as part of a negotiation process. The UK proposals may change, either becoming more generous as part of the negotiation or being withdrawn partially or in full if the negotiations fail.

The EU has already made public its own comprehensive proposals, which are essentially to preserve EU law rights for citizens of the EU in the UK and of the UK in the EU alike, with enforcement of rights through the Court of Justice of the European Union. Self evidently, that EU proposal would guarantee and protect all existing rights of all citizens.

The UK proposal falls very considerably short of that, proposing in essence to enable EU nationals in the UK to apply for Indefinite Leave to Remain (ILR) under UK law. This would include EU citizens who have already applied for and obtained permanent residence documents, which would be considered worthless by the Home Office after Brexit. Failure to do so would render an EU citizen unlawful and they would be committing a criminal offence by remaining in the UK after the agreed transition period. This status would be lost after two years’ absence from the UK, with re-entry only under whatever new immigration rules the UK introduces. Family reunion rights under EU law would also be lost and EU nationals would have to rely on the same appalling family reunion rules as British citizens, recently adjudged the most restrictive in the developed world. However, certain rights currently enshrined in EU law would be preserved, including benefits, healthcare and pensions entitlements.

In short, EU citizens already living in the UK would be treated identically to other foreign nationals settled in the UK.

It is hard to see in what way the UK proposals are “generous” as had originally been suggested. For example, on family members the offer is merely to comply with EU law until Brexit, which the UK is already obliged to do. Kicking out family members who had lawfully arrived in the meantime should be utterly unthinkable anyway. The UK proposals rather look like the bare minimum which decency demands; if one considers what arrangements the UK would be likely to put in place in the event of “no deal” when Brexit occurs, they would surely look a lot like these. The UK was never going to forceably remove 3 million EU citizens resident in the UK.

It is also hard to see anything positive that the UK has achieved by waiting until now to publish these minimalist proposals. Had this plan been proposed shortly after the referendum result, it would have at least reassured EU nationals living in the UK and it would also made made clear there was no need to apply for permanent residence documents. At this point in time, though, it makes clear the loss of almost all EU law residence rights and puts two fingers up at those EU nationals who have applied for permanent residence in the meantime, concerned as they were to do whatever they could to make their position feel more secure.

As an aside, although according the UK’s current proposals permanent residence documents will be worthless when Brexit occurs, any EU nationals in the UK who want to apply for British citizenship through the naturalisation process are obliged to get a permanent residence document first in the meantime.

What are the proposed rights and who can acquire them?

In summary, the UK is proposing:

  • EU citizens who have resided in the UK for five years and continue to be resident in the UK will be entitled to “settled status”. In the proposal, “settled status” is said to be to indefinite leave to remain pursuant to the Immigration Act 1971.
  • This “settled status” will not be automatically conferred; all EU nationals, including those with permanent residence documents, will have to make an application
  • Those who arrived in the EU before the “cut-off date” (see below) but have not lived in the UK for five years will be allowed to remain until they reach five years, when they will be given “settled status”. During that time, they will be given “temporary status”.
  • EU citizens who arrive after the “cut-off date” will be allowed to remain for a temporary period but if they want to stay longer will have to apply under whatever the domestic UK immigration rules provide at the time. This includes students, who will be eligible to apply for permission to stay to complete their course only.
  • EU citizens who lived in the UK as self-sufficient will not need to show that they had comprehensive health insurance in order to qualify for the new settled status.
  • The “cut-off date” is still to be negotiated but will be between 29 March 2017 (when Article 50 was invoked) and the date the UK leaves the EU. This means that EU nationals who have entered since 29 March 2017 could conceivably be forced to leave the UK.
  • There will be an automatic “grace period” of up to 2 years between the date the UK leaves the EU and the date all EU citizens will need to have a “residence document” confirming their status in the UK.

Irish citizens will not be affected and will not need to apply for “settled status.”

The examples set out in the position paper are useful to illustrate who will have what rights.

EU citizen with five years’ residence before the UK’s withdrawal from the EU

Andriana is a Greek national who will have been resident in the UK for ten years on 1 April 2019.

Andriana will continue to have the right to exercise her free movement rights to live and work in the UK up to the point that the UK leaves the EU. As Andriana has been living continuously in the UK for over five years (without an absence of more than two years after that five years), she also immediately qualifies for settled status.

This means she can apply for settled status under the new UK scheme once it is open. Once she has received her status and document she does not need to do anything further after the UK leaves the EU. Andriana will have successfully secured her immigration status in UK law.

Andriana does not need to apply immediately for settled status. She can remain in the UK after exit and continue her activities, during the grace period of blanket permission. However, she must apply to the Home Office for permission to stay before this grace period expires if she intends to carry on living in the UK afterwards.

EU citizen who arrived before the specified date, has not completed five years’ residence before the UK’s withdrawal from the EU

Christophe is a French teacher who arrived before the specified date and will have been in the UK for four years at the point the UK withdraws from the EU.

After the UK leaves the EU, Christophe will be able to continue to live and work in the UK during the grace period of blanket permission without having to make an application. Once Christophe has been resident for five years, which will be before the end of the grace period, he will be entitled to apply for settled status which will allow him to settle in the UK permanently.

EU citizen who arrived before the specified date but has not completed five years’ residence by the end of the grace period

Lukas is an Austrian national who came to work in the UK before the specified date. He will have been resident in the UK for two years at the point the UK withdraws from the EU. After the UK leaves the EU, Lukas will be able to continue to live and work in the UK during the grace period of blanket permission without having to apply for any permission. He must apply to the Home Office for temporary residence document if he wishes to continue to reside in the UK after the grace period. This will enable him to continue lawfully living and working in the UK while completing five years’ residence.

Once Lukas has been resident for five years he will be entitled to apply for settled status which will allow him to settle in the UK permanently.

EU citizen who has arrived after the specified date

Aisha is a German national who arrived in the UK after the specified date. She is self-employed and would like to settle in the UK. If the specified date is pre-exit, Aisha can still exercise her free movement rights to live in the UK until the UK leaves the EU.

However, once the UK leaves the EU, Aisha’s free movement rights will end. Like Christophe, Aisha will not be required to leave the UK when we exit the EU, she will be able to stay during the blanket permission period – but she must apply for permission to stay (‘leave to remain’) here beyond that period. If Aisha successfully applies for permission to stay, she will be granted a temporary residence document.

If Aisha wishes to stay in the UK after her temporary permission expires, she will need to obtain further permission. Her eligibility for further permission will depend on the rules in force at that time. Unlike Christophe, she is not guaranteed to be eligible to apply for permission to stay in the UK permanently.

What rights will go with the new status?

Benefits, pensions and social security contributions

Those with “settled status” will have the same entitlement to public funds as British citizens. Those with “temporary status” in the UK, i.e. those on a pathway to settled status, will have similar entitlements to what EU nationals currently lawfully present in the UK but with no right to permanent residence have. Namely, workers and self-employed individuals will have equal access to benefits as British citizens, while those not working will have a more limited access.

Those who have started exporting UK benefits abroad before the “cut-off date” will be able to continue doing so.

Those who have worked in other EU states will be able to continue counting these periods towards their entitlement to pension.

Healthcare and education

The European Health Insurance Card scheme and healthcare arrangements set out in EU Regulations will remain in place so that EU citizens will continue to be eligible for NHS-funded healthcare in the UK.

EU citizen students wishing to study at UK universities will be able to continue paying “home fees” and access tuition fee loans. This will continue to apply until the cohort starting their course in the 2018/2019 academic year.

Voting

EU citizens in the UK are currently not allowed to vote in general elections (or in the EU referendum) but are allowed to vote in local elections. Commonwealth citizens settled in the UK are allowed to vote in general elections, though. The bar on voting in general elections will continue and the proposal is silent on voting on local elections, although the Immigration Minister is reported as saying this right will not be lost.

What about family members?

The family members of those who arrived before the UK exits the EU will be eligible for “settled status” after five years as family members of EU nationals. For those in the UK for less than five years, they will also be allowed to apply for “temporary leave” until they reach the necessary five years for “settled status”.

Family members arriving after the UK leaves the EU will be subject to the same rules as those joining British citizens, or to the “post-exit immigration arrangements for EU citizens” (of which we have no details so far). The relevant date is the date that the family member comes to the UK, not the EU citizen.

Example

Fernando is a Spanish national. He arrived in the UK on 10 April 2010 and started working immediately after. He acquired the right to permanent residence on 10 April 2015. By the time the UK leaves the EU, let us say on 1 March 2019, he is entitled to “settled status”. On 5 April 2019, after the UK has left the EU, he marries Joanne, a South African national. Joanne wants to join Fernando in the UK. She will need to apply under the same rules as those joining British citizens, or to the “post-exit immigration arrangements for EU citizens”. She will not have an automatic entitlement to live in the UK as the family member of an EU national with Permanent Residence.

Children of those applying for settled status can apply for “settled status” at the same time as their parents. They will also be entitled to register as British citizens. Those born in the UK by parents with “settled status” will be born British.

What steps will EU citizens need to take and when?

The main difference between the current status quo and the new rules is that an application will need to be made before acquiring the new immigration status. All EU citizens will need to submit an application before the end of the “grace period” (see below), including those who already have a document certifying their right to permanent residence, although their applications will apparently be “streamlined”.

Although the UK proposal does not spell it out, failure to do so will mean the individual concerned is committing a criminal offence in breach of UK immigration law.

The fee for the application has not yet been decided, the proposals limiting itself to saying that they will be set at “a reasonable level”. What will be considered “reasonable” is yet to be seen, as there is currently an enormous difference between the £65 fee for a document certifying Permanent Residence or a Registration Certificate, and the £993 Home Office fee+£500 Immigration Health Surcharge for limited leave to remain; and £2297 fee for Indefinite Leave to Remain.

The government says it wants the process to be “as smooth and simple as possible”. We still have no details on the evidence that will need to be provided, but the proposals promise that the government will aim at minimising the burden of documentary evidence, including by caseworkers using existing government data, such as income records, to determine how long EU nationals have resided in the UK. This “shared burden of proof” is unheard of for current applications.

It is possible that EU citizens will be finger-printed. All will be subject to “an assessment of conduct and criminality, including not being considered a threat to the UK”.

EU nationals who have successful applications will be issued a “residence document”. This de facto ID card will be needed to access health care, employment, housing, banking services and more.

In terms of timing, there will be a grace period of 2 years to avoid what the proposals call a “cliff-edge”. The document says we “need to avoid a legal gap between the end of free movement rights and the point at which individuals apply for and obtain UK immigration status” and there will therefore be a “period of blanket residence permission to start immediately upon the UK’s exit from the UK. […] Once a residence document has been obtained, the blanket permission for that individual will automatically expire and be superseded by the individual residence permission”.

For the most keen, a voluntary scheme will be implemented so that they may apply for their “settled status” prior to the UK’s exit from the EU.

How will the future status be protected and enforced?

The proposal confirms that the agreement “will have status of international law” but, as expected, the proposal is that the Court of Justice of the European Union will not have jurisdiction in the UK. It remains to be seen whether this will be deemed acceptable by the remaining members of the EU.

The problem is that legal rights are worthless unless they can be enforced in the event that they are breached. If these rights are enshrined only in UK law, the UK Parliament could unilaterally legislate at any time to amend or remove these rights. This might be dismissed as being fanciful, but it is not at all hard to imagine a future government seeking to water down rights in response to perceived public pressure. Trust me, I’m a lawyer; I make my living from alleged breaches of the law by the government of the day.

The UK proposal includes reference to no mechanism for either:

  1. Judging whether the agreed rights have been breached in some way or
  2. Ordering enforcement of the originally agreed rights.

This is why the EU is very keen to involve the Court of Justice. Without the Court of Justice or a comparable mechanism, such as the EFTA court, the agreed rights are barely worth the paper on which they are written.

And this cuts both ways; without an adjudication and enforcement mechanism in place, the rights of UK citizens will not be secure either. This is something on which the UK proposal is completely silent.

Differences between the new immigration status and the current rights of EU citizens and their family members

The main practical difference is that, while rights under EU law are automatic, and therefore individuals do not need to apply for documents confirming their right to live in the UK, EU citizens will now not have any right unless granted “settled status” or “temporary leave”. An application for this status will need to be made. The proposal says that they will “guarantee grant of settled status”, not that individuals will automatically have this status by operation of the law.

Currently, EU citizens with the right to permanent residence will not lose this right unless they leave the UK for a continuous period of 2 years, during which they never step foot in the UK. However, at present this is not necessarily problematic because it is easy to re-enter the UK under EU law.

The UK proposal says that “settled status would generally be lost if a person was absent from the UK for more than two years, unless they have strong ties here”. However, if “settled status” really is indefinite leave to remain pursuant to the Immigration Act 1971, then individuals will actually lose this status automatically as soon as they are outside the UK for two years continuously, as occurred in the case of Irene Clennell. It will not in future be possible for such a person to re-enter easily; he or she will need to qualify under whatever the domestic UK immigration rules say at that time (for example under the Points Based System) or under the “returning resident” rule.

Individuals will only be able to apply for “settled status” if resident in the UK. Currently, an individual who has left the UK but acquired the right to permanent residence in the past can make an application for a document confirming this right, provided they have not been absent from the UK for more than 2 years.

European nationals will no longer have an automatic right to bring their family members in the UK, but will instead need to meet much, much stricter rules. The UK family immigration rules were recently found to be the least family friendly of 38 developed countries according to the Migrant Integration Policy Index.

What are the UK immigration rules for family members?

To sponsor a spouse to enter the UK, the British citizen must have been earning at least £18,600 for at least six months (two years for the self employed), meet complex and onerous various documents to prove this and the spouse must pass an English test.

The total application fee for a spouse, including extension and settlement applications, currently costs over £5,500 but this increases by around 20% per year.

Since 2012 it has been virtually impossible for adult dependent relatives (primarily parents and grandparents) to enter the UK. The rules require the relative to need long term personal care to perform everyday tasks and it must be unaffordable or there must be no person in the country of original who can provide it. The current cost of an application is £3,250 but this too goes up by around 20% per year. You can read about the full requirements of these rules here: The new immigration rules for Adult Dependant Relatives: out with the old…

It will be easier to refuse “settled status” on grounds of criminality than it is now, where the very high test of posing a danger to public policy or public security must be applied. Although the proposal does not spell this out, if EU citizens with this “settled status” are involved in future criminal offending resulting in a prison sentence of 12 months or more, they will be subject to automatic deportation under the UK Borders Act 2007.

What about British nationals in the EU?

Despite its title, which includes “UK Nationals living in the EU”, the document says very little indeed about the rights of UK nationals.

In its introduction, the document says that

the UK fully expects that the EU and its member states will ensure, in a reciprocal way, that the rights set out above are similarly protected for UK nationals living across the EU before the specified date. Firstly, UK nationals in the EU must be able to attain a right equivalent to settled status in the country in which they reside. Secondly, they must be able to continue to access benefits and services across the member states akin to the way in which they do now.

However, it does not give many more details, apart from the fact that the pension of British nationals living in the EU will still be uprated (that is, benefit from the annual increases); and that British citizens who receive UK benefit or draw a UK state pension and rely on a European Health Insurance Card will still be able to receive healthcare cover by the UK in their new country of residence.

How does the UK expect the reciprocal rights to be legally encoded at the EU end of things, and how does the UK expect such rights to be enforced? We know not. Is the UK proposing a new EU law Directive or Regulation applying only to UK citizens? This would be unprecedented, and it really is not for the UK to tell the EU to legislate on this. Also, this would be grossly asymmetric. If the rights of UK citizens in the EU were encoded in EU law, UK citizens in the EU would have the protection of the CJEU but EU citizens in the UK would not.

A more likely scenario is that UK citizens would be given an opportunity in each and every country in which they reside to apply for local immigration status under the laws of the relevant country. This is what the UK proposes for EU citizens, after all. How would this work in practice? And if Spain, France or Hungary breached the reciprocal agreement in some way, such as by denying unrated pension entitlements, how would such rights be enforced? The UK Government would have no standing and would be helpless to protect its own citizens, who would have been cut loose with barely a cry of “good luck!”

There is no sign that the UK has even considered the problems around the rights of UK citizens in the EU.

“Putting anxiety to rest?”

In her statement to Parliament of 26 June, Theresa May said

First, we want certainty. I know there has been some anxiety about what would happen to EU citizens at the point we leave the European Union.

Today I want to put that anxiety to rest. I want to completely reassure people that, under these plans, no EU citizen currently in the UK lawfully will be asked to leave at the point the UK leaves the EU. We want you to stay.

It is a bit late for that! The uncertainty is entirely of the UK government’s own making, after all. Had the proposals been published earlier, EU citizens in the UK would have had some reassurance.

Will the belated proposals put EU citizen’s anxiety to rest now? It is certainly true that if these proposals are implemented no EU citizen currently in the UK lawfully will need to leave. However, many questions are still to be answered. For example

  • When is the cut-off date? If 29 March 2017, that will certainly not put to rest those who will enter from now on, especially considering that nothing is known about the “post-exit immigration arrangements” apart that the government will apparently “continue to welcome the contribution EU citizens bring to our economy and society; the UK will remain a hub for international talent”.
  • What about British citizens? The UK seems to be have no idea of how their rights might be protected in future.
  • Why are those who already have a document certifying permanent residence not given “settled status” automatically but will instead need to apply again?
  • Will there be a right of appeal against an application for “settled status” or “temporary leave”?
  • What about nationals of Iceland, Liechtenstein, Norway and Switzerland? So far, the document simply states that there will be “Similar arrangements” with these countries “on a reciprocal basis”

At least we now have some idea of what the UK wants to achieve, even if it is not enough, it is merely a negotiating position for now and there are many unanswered questions. We will be watching the negotiations carefully as they progress.

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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