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Brexit: settled status and citizens’ rights – what has been agreed?

Brexit: settled status and citizens’ rights – what has been agreed?

The European Commission and the UK government have reached a deal to finalise the first phase of Brexit talks. One of three core issues of this phase involved EU nationals’ rights in the UK and reciprocal rights for UK nationals living elsewhere in the EU. This post focuses on what the deal means for EU citizens in the UK.

At first sight, what has been agreed in principle does appear to be the “generous” offer originally promised. But as you start delving into the detail, obvious caveats and gaps appear.

EU citizens must apply for what the Home Office refers to as “settled status“. This includes people who have already applied for and obtained permanent residence documents. Anyone who fails to do so by the specified date will be rendered unlawfully resident and will be committing a criminal offence by remaining in the UK.

How many EU citizens will be criminalised by Brexit? - by Colin Yeo

Some EU citizens now living in the UK will find themselves committing criminal offences after Brexit. That much is certain. How many people exactly will become unlawfully resident is probably impossible to calculate, and here at Free Movement we do not have the resources to do so, but the number could plausibly run into the hundreds of thousands.

Those who do not apply for settled status, who are not entitled to that status or who cannot prove their entitlement to it will all be caught out.

report by the Migration Observatory at the University of Oxford points out that “it is not possible to estimate the likely size of these groups, which will depend on individual’s decisions and the registration process itself. However, because of the large number of people who will need to apply—more than three million—even if only a few percent were affected the number could be in the tens or even the hundreds of thousands”.

Read more.

This settled status will be lost after five years’ absence from the UK, with re-entry only under whatever new immigration rules the UK introduces.

Family reunion rights will be retained for family members already residing here under EU law prior to 29 March 2019. After that, only certain family members outside the UK will retain the right to join the EU citizen in the UK, while all other family members will be unable to do so unless they meet the stringent UK immigration rules.

Certain other rights currently enshrined in EU law will be preserved, including benefits and healthcare entitlements. EU citizens who have made contributions into the UK benefits and pension system will continue to benefit from those contributions during their time in the UK, as well as if they subsequently relocate to the EU.

Though falling well short of “generous”, it is a higher level of protection in some respects than the UK wanted. For example, the UK has been forced to accept that the Court of Justice of the European Union will remain the final arbiter of the interpretation of EU law for the rights of EU citizens under the agreement (though, again, with some caveats). This is a considerable climbdown by the UK and it will be interesting to see how this plays out within the government.

The European Council has still to sign off on this deal at its summit later this week. It will then form the basis of a Withdrawal Agreement between the EU and UK, binding in international law, once the Brexit talks conclude. The UK has promised to implement the Withdrawal Agreement by passing a Withdrawal Agreement & Implementation Bill.

It is important to remember that what has been agreed may change as the process of untangling ourselves from Europe continues, or disappear entirely if second phase talks break down. As we have seen, nothing in this process is simple or straightforward.

What are the proposed rights and who can acquire them?

In summary, the agreement establishes:

  • EU citizens who have resided in the UK lawfully for five years before 29 March 2019 and continue to be resident in the UK will be entitled to “settled status”.
  • This settled status will not be automatically conferred. All EU nationals, including those with permanent residence documents, will have to make an application to acquire it.
  • Those who arrived in the EU before 29 March 2019 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 may be given “temporary status”.
  • There will be a window of two years from 29 March 2019 when all EU citizens, and their family members, can apply for settled status or temporary status.
  • Those who do not apply before this two-year period ends will, without serious and good reasons for not doing so, be residing without permission and will be subject to removal.
  • EU citizens who lived in the UK as self-sufficient persons or students may not need to show that they had Comprehensive Sickness Insurance in order to qualify.
  • EU citizens and family members who acquire new criminal convictions or issues affecting their character from 29 March 2019 will be subject to assessments under UK immigration rules and could see their documents revoked and, if not removed, banned for a period from applying for British citizenship.
  • Family members will qualify so long as they were already residing in the UK under EU law prior to 29 March 2019. Close family members will be allowed to join EU nationals after 29 March 2019, while other family members will be excluded.
  • EU citizens who arrive after 29 March 2019 will have to apply under whatever the domestic UK immigration rules provide at the time, likely to be some form of registration process.

The agreement does not cover Norway, Iceland, Lichtenstein and Switzerland, but it is expected to extend to those countries in the future. Irish citizens will not be affected and will not need to apply for settled status.

The Home Office has provided the following examples to illustrate who will have what rights based on this agreement:

‘Andriana’ will have been resident in the UK for 10 years when the UK leaves the EU

Andriana is a Greek national who will have been resident in the UK for 10 years on 29 March 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 on 29 March 2019. As Andriana has been living continuously in the UK for over 5 years (without an absence of more than 2 years after that 5 years), she also immediately qualifies for settled status, subject to criminality and security checks.

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

It’s OK if Andriana doesn’t immediately apply for settled status. She can remain in the UK after exit and continue her activities for a period of 2 years. However, she must apply to the Home Office by 29 March 2021 for permission to stay if she intends to carry on living in the UK afterwards.

‘Christophe’ arrived before the UK’s exit but won’t have been resident in the UK for 5 years when we leave the EU

Christophe is a French teacher who arrived before the UK’s exit from the EU and will have been resident in the UK for 4 years at the point the UK leaves the EU.

After the UK leaves, Christophe will be able to continue to live and work in the UK until 29 March 2021 without having to make an application. As soon as Christophe has been resident for 5 years, he will be entitled to apply for settled status which will allow him to settle in the UK permanently.

‘Lukas’ arrived before the UK’s exit but won’t have been resident in the UK for 5 years by the end of the 2-year period after exit

Lukas is an Austrian national who came to work in the UK before the cut-off date. He will have been resident in the UK for 2 years before the UK’s exit from the EU.

After the UK leaves the EU, Lukas will be able to continue to live and work in the UK during the 2-year period after exit without having to apply for any permission. He must apply to the Home Office for a temporary residence status if he wishes to continue to live in the UK after 29 March 2021. This will enable him to continue lawfully living and working in the UK until he meets the 5-year threshold.

Once Lukas has been resident for 5 years he will be entitled to apply for settled status which will allow him to settle in the UK permanently.

‘Audra’ and ‘Ignas’ qualify for settled status and are expecting a baby

Audra and Ignas moved to the UK from Lithuania in 2015. They are married and are expecting a baby later in 2018.

After the UK leaves the EU, Audra and Ignas will be able to stay in the UK as now during the 2-year period after exit without having to apply for permission to do so. Once they have been resident for 5 years, in 2020, they will be entitled to apply for settled status which will allow them to settle in the UK permanently.

When their child is born later this year, their son or daughter will also have the opportunity to stay permanently in the UK. Once they get settled status, Audra and Ignas will need to apply for settled status on their child’s behalf. Or they can instead choose to register their child as a British citizen.

‘Agnieszka’ is intending to study in a UK university

Will all EU citizens qualify?

Only EU citizens who fall under Article 6 and Article 7 of Directive 2004/38/EC, and who are legally resident in the UK, will meet the criteria for settled or temporary status. This means that an EU citizen must be and continue to be a worker, self-employed person, student, or self-sufficient person, or lawfully retain those rights, on 29 March 2019 to be eligible.

Those EU citizens who cannot demonstrate that they are a worker, self-employed person, student, or self-sufficient person, or lawfully retained those rights, on 29 March 2019 may not satisfy the requirements. The agreement is silent on what EU citizens who cannot meet the requirements can do.

Presumably they would be required to apply under whatever registration process will be available under the UK immigration rules for EU citizens from 29 March 2019. The Home Office has indicated that those who cannot meet the requirements may receive temporary status until such time that they can do so but the published agreement is not so clear on this point.

While EU citizen students or self-sufficient persons as defined under Directive 2004/38/EC are required to hold Comprehensive Sickness Insurance, the Home Office has said that this requirement will be waived.

Another problem arises for EU citizens who are not resident at Brexit date as the agreement suggests they would not qualify for the new application process. This would suggest that those EU citizens who already hold a permanent residence document for the UK but who are not living in the UK as at Brexit date may not be included in the new application process.

EU citizens unsure whether they meet the requirements of Directive 2004/38/EC, or who are outside the UK and are considering their options, may consider seeking advice before Brexit day.

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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 as EU nationals currently lawfully present in the UK. 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 29 March 2019 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 pension entitlement.

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.

What about family members?

The family members of those who arrived before 29 March 2019 will be eligible for settled status after five years. Those in the UK for fewer than five years will eligible for temporary leave until they reach the necessary five years for settled status.

In general, only family members who are legally resident in the UK by 29 March 2019 will be able to apply for the new status. But family members as defined under Directive 2004/38/EC will be able to arrive after that date and qualify for settled status so long as the relationship existed before that date and there is evidence of this. In this group are:

  • pre-existing spouses
  • civil partner
  • durable partners
  • children or grandchild under 21
  • dependent children or grandchildren older than 21
  • dependent direct relatives in the ascending line of the EU citizen or his/her spouse

The same applies for children born after the Brexit date.

Other family members will qualify so long as they were already residing in the UK in accordance with EU law prior to 29 March 2019. These family members will include:

  • aunts
  • uncles
  • brothers
  • sisters
  • cousins
  • nieces
  • nephews

Any family members who do not fall into these categories – for instance, a partner from a relationship beginning after the date of Brexit – will be subject to the same harsh and impossible rules as those joining British citizens are required to meet. These rules were found to be the least family friendly of 38 developed countries, according to the Migrant Integration Policy Index.

Example: pre-existing relationship with a close family member

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, he is entitled to settled status. On 5 April 2019, after the UK has left the EU, he marries Sarah, a South African national. Their relationship started in May 2016. Sarah wants to join Fernando in the UK. Because their relationship started in May 2016 she will be able to apply under the new application process to join Fernando in the UK so long as Fernando returns to the UK within five years

Example: extended family member

Joanne is a Spanish national. She arrived in the UK in 2008. After five years of working, she applied, in 2013, for a document confirming her automatic right to permanent residence. One reason for her journey to the UK was to earn a higher salary and to send this money to her uncle, Mateo, in Spain. Mateo is unwell and cannot work, so he relies entirely on the money Joanne sends him. After 29 March 2019 Mateo becomes so ill that he cannot move and requires long term care. Mateo will be excluded from applying to join Joanne under the new application process because he was outside the UK on 29 March 2019. He will be required to apply under the UK immigration rules. However, because his condition is not life threatening and care can be funded in Spain he will be unable satisfy the UK immigration rules.

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 to parents with settled status will be born British.

How will these rights be protected and enforced?

The Withdrawal Agreement will have the status of international law. The Court of Justice of the European Union (CJEU) will continue to have jurisdiction in the UK for eight years. This appears a very big climbdown by the UK government but it is also an area on which the EU has conceded too, leaving citizens facing a possible precarious situation further down the line.

All applicants who are refused documents will have a right to appeal the decision to the First-tier Tribunal (Immigration and Asylum Chamber). While the tribunal will decide the appeal, the CJEU will continue to be the ultimate arbiter of the interpretation of EU law for the rights of citizens. This means the UK courts can continue to refer to CJEU judgments. It also means that UK courts can continue to seek further interpretation and clarifications from the CJEU in areas of uncertainty.

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While the CJEU will continue to have the final say for eight years from the date of the EU national’s original application, it falls short of the promise of full protection for the citizen’s lifetime.

But with the adjudication and enforcement mechanism remaining in place for the short term, the rights of EU citizens will be secure for long enough for them to naturalise as British citizens. It does mean that naturalisation may no longer be a choice but a necessity for some.

Differences between the new status and current EU law rights

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 rights unless granted settled status or temporary status. An application for one or the other status will need to be made. The agreement says:

There will be no discretion to refuse status other than for reasons allowed by the Withdrawal Agreement, but discretion can be exercised in favour of the applicant.

This is all well and good, but it does not say that individuals will automatically have this status by operation of the law as is the case now.

The agreement confirms that settled status would be automatically lost as soon an EU citizen has been outside the UK for five years continuously. This is longer than the current period, which tops out at two years. But once lost, it will not be possible for such a person to simply re-enter, as they could while the UK was in the EU. The individual will need to qualify for entry under whatever system will be in place for EU citizens after 29 March 2019, which may not be as easy.

What steps will EU citizens need to take and when?

All EU citizens will need to submit an application before the end of the two-year period beginning on 29 March 2019, including those who already have a document certifying their right to permanent residence (although their applications will be easier, and free – see below).

The agreement confirms that failure to do so will mean the individual concerned is committing a criminal offence in breach of UK immigration law. They will then enter the “hostile environment” created by the Home Office. This means they will be barred from employment, study, renting accommodation, and holding a bank account.

We have a sense of what the application process will look like. An online application form will need to be completed. The Home Office will be allowed to charge a fee, which it says will not exceed the cost of a British passport (£72.50, at the moment).

The agreement promises 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. EU citizens will not be required to share biometric data other than a photograph.

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The Home Office is to be flexible with its decision-making process. It will be required to give applicants the opportunity to supply more evidence or remedy any deficiencies in the application before a decision is made, but only where it appears that errors can be simply remedied. The Home Office will be unable to exercise any discretion in the decision process unless exercised in favour of the applicant. This means refusal grounds can only be those agreed.

People that abuse the process – though what is considered “abuse” is as yet undefined – or supply fraudulent information or documents, will be refused and subject to removal from the UK.

All applicants will be subject to an assessment of conduct and criminality, including not being considered a threat to the UK.

EU nationals whose applications are successful will be issued a residence document. Once a residence document has been obtained, the blanket permission for that individual will automatically expire and be superseded by the individual residence permission.

This de facto ID card will be needed to access health care, employment, housing, banking services and more.

For the keenest, a voluntary scheme will be implemented so that they may apply for their settled status prior to the UK’s exit from the EU. We are hearing that this will available from September 2018.

What if an EU citizen already possesses a permanent residence document?

Those who already hold a permanent residence document can have that document converted into the new settled status document free of charge subject to verifying their identity, subjecting themselves to a criminality and security check and providing confirmation of continued residence.

This means that those who have already paid once will not be required to do so again. Nor will they be required to demonstrate that they continue to exercise their treaty rights (e.g. continue to be a worker). So there remains a benefit to obtaining a permanent residence document now. Having a permanent residence document will avoid having to undergo a full assessment later, simultaneously with three million other EU nationals plus their family members.

Also, no matter how simple the new process is or how well publicised, there remains ongoing confusion as to the status of EU citizens or family members now when managing their day-to-day lives, and this may increase as we move beyond 29 March 2019 into the two-year grace period. Holding a document will prevent confusion when individuals attempts to rent a property, move between jobs or open a bank account. Not forgetting the scenario, however small, that Brexit does not occur and the UK remains part of the European project.

Questions, questions

What about Comprehensive Sickness Insurance?

The terms of the agreement define the EU citizens and family members that are protected by it. The definitions are as set out under Directive 2004/38/EC. The problem here is that the Directive defines self-sufficient persons and students, including their family members, as those who hold Comprehensive Sickness Insurance cover. Therefore, if we adhere strictly to the written terms of the agreement, Comprehensive Sickness Insurance remains a requirement. The only source saying otherwise is the Home Office website, which states:

We will not check that you hold comprehensive sickness insurance regardless of what activity you have been undertaking in the UK… In some circumstances, comprehensive sickness insurance is still required for the purposes of accessing the healthcare system in the UK, but will no longer be considered as a requirement for acquiring settled status.

The European Commission confirms that this is a “unilateral and non-binding” UK offer – not part of the agreement it has negotiated.

So long as one takes the word of the Home Office, there is nothing to worry about here. Unfortunately this does not sit easily with me as an immigration practitioner. Once the UK has successfully Brexited there is nothing preventing the Home Office from changing its mind. This is an area which should be closely watched as the talks progress.

What about EU citizens with criminal records?

It will be easier to refuse settled status on grounds of criminality than it is now, for EU citizens or their family members who acquire new criminal records or new issues of conduct after 29 March 2019.

Currently, there is a very high test for removing EU citizens from the UK: that they pose a danger to public policy or public security. This stringent test will continue to apply for all EU citizens and their family members for criminal records or issues of conduct acquired before 29 March 2019, and so long they resided in the UK before this date. This group will continue to be protected by EU law and the Home Office will find it much harder to prove the individual poses a danger to public policy or security.

People who acquire convictions or conduct issues from 29 March 2019 will no longer be protected by EU law and their applications will be subjected to the UK assessment of criminality. This assessment has a much lower test, leaving this group of EU citizens and family members at a greater risk of refusal and removal. While it is easy to tell people not to get into trouble, some vulnerable people will be at a greater risk of falling under the UK assessment in the future. Homeless people in particular appear to fall completely outside the terms of the agreement.

And how will the Home Office know about any criminal or conduct issues? As part of the application process, all EU citizens and their family members will have to undergo mandatory criminal checks.

What about EU citizens who are outside the UK on 29 March 2019?

People will only be able to apply for settled status if resident in the UK. Currently, someone who has left the UK but acquired the automatic 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 two years. This right disappears for EU citizens from 29 March 2019.

EU citizens and their family members living outside the UK on 29 March 2019 will not have their past rights protected and will not be able to apply for settled status. It will not matter if an EU citizen outside of the UK after 29 March 2019 possesses a permanent residence document. They will still fall outside the scope of the new application process.

Any EU citizen currently residing outside of the UK who sees the UK their long-term home should consider moving to the UK and start exercising their treaty rights prior to 29 March 2019. This includes family members who would be excluded from joining the EU citizen after 29 March 2019 (see above).

Done deal?

Theresa May’s promise that no EU citizen currently in the UK lawfully will be asked to leave at the point the UK leaves the EU is not entirely water-tight. Many questions are still to be answered. For example:

  • What happens to EU citizens resident in the UK but not legally because they will not be exercising treaty rights on 29 March 2019?
  • What about homeless EU citizens, who cannot be considered lawfully resident in the UK?
  • Why is an EU citizen with a permanent residence document but living outside the UK from 29 March 2019 excluded from re-entering under the new process?
  • Is Comprehensive Sickness Insurance really not necessary?
  • Why should EU citizens who start relationships or get married after 29 March 2019 be prevented from bringing their partners to the UK under the new application process? Why should this person be required to apply under Appendix FM while his/her child will fall under the new application process?
  • What happens to a non-EEA citizens with permanent residence who are no longer family members (e.g. Brazilian ex-wife) now that they are outside the scope of the new application process?
  • Should EU citizens consider bringing their family members to the UK now?

The promise of comprehensively settling the rights of EU citizens and their family members remains unfulfilled.

This article replaces an earlier version published in June 2017 that was based only on the UK’s proposals.

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