The UK and EU, after a series of tough negotiations, have now reached an agreement over the framework for EU Citizens’ Rights. A joint document, prepared by negotiators on both sides of the table, has now been prepared and gives clarity on what EU nationals living in the UK (and UK nationals living in the EU) can expect in terms of their future rights.
The challenge faced by UK negotiators has been creating a system that acknowledges that EU nationals within the UK have, to a large extent, been allowed to remain without any immigration enforcement action taken against them (apart from limited circumstances where, for example, a person has engaged in serious criminal conduct). The transition to a system, for millions of EU nationals, where it would be necessary to make applications to obtain status to remain in the UK, needs to be handled with great sensitivity. The ultimate fear is that a trickle of EU nationals leaving the UK would turn into a flood, with severe consequences (not least for businesses and sectors that are dependent on EU workers such as the NHS).
It appears that these concerns have informed the approach of the UK’s negotiating position, and to a large extent, the approach to citizens’ rights has softened since the original position paper was published by the UK government on 26 June 2017. Over the last 6 months of negotiations, but in particular in the final stages, there have been some important concessions with respect to citizen’s rights, and in general they are good news for EU nationals currently living in the UK.
Deciding which date the new rules will come into force
It has always been the case that EU nationals will continue to enjoy freedom of movement within the UK until the UK leaves the EU. The question has been what will happen to EU nationals and their family members after the UK leaves the EU and what rights will they have?
One of the issues that needed to be decided was what the ‘cut-off’ date would be for EU nationals who wanted to benefit from the provisions of any withdrawal agreement. There was uncertainty whether the ‘cut-off’ date would be the date the UK triggered Article 50 (29th March 2017) or the date the UK leaves the EU. Following negotiations, it has been decided that the specified date will be the date that the UK leaves the EU (i.e. barring any unexpected developments, the 29th March 2019). Any EU nationals who arrive before that date will benefit from the provisions of the withdrawal agreement. EU nationals arriving after the specified date will be subject to new rules which have yet to be decided.
The focus of negotiations therefore has been what rights EU nationals who arrive in the UK before the 29th March 2019 will have and what they will need to do in order to be able to remain in the UK.
The UK Government have agreed that there will be an implementation period that will last at least 2 years. All EU nationals will be allowed to continue living in the UK for the two years following the UK’s departure from the EU, and EU nationals will also be able to travel to the UK within this period. This period has been set in part, to enable the large numbers of EU nationals currently living in the UK to regularise their status.
Making an Application
The UK government has decided that all EU nationals, regardless of what previous EU residence documents have been issued, will need to make an application if they want to remain in the UK in future.
The Withdrawal Agreement will set out the circumstances in which an EU national will be able to get a permanent right to reside in the UK. The general position that has been agreed is that EU nationals who have lived lawfully in the UK for 5 years will obtain the right to the new ‘settled’ status that is being created. If EU nationals do not get to the 5 year point before the end of the implementation period, they will be granted a shorter period of leave to remain so that they can get up to the 5 year point and will then be able to apply for settled status.
The UK government and the joint agreement goes to great pains to set out that the application process will be designed to be as straightforward as possible. The agreement includes that the application form will be ‘short’, that the Home Office will need to work with Applicants to remedy problems with their application, and that there should not be an excessive administrative burden in connection with the application. EU nationals who have had experience of completing the current forms for a residence card (100 pages) or permanent residence documents (85 pages) will be relieved! The cost of the application is going to be no more than the cost of applying for a UK passport.
The intention is for the application process to be opened towards the second half of 2018, although it will also be possible to make the application for up to two years after the UK leaves the EU.
Good news for those who have permanent residence documents
There is no requirement under old EU laws for EU citizens to apply for residence documents, however the numbers making applications have increased rapidly since the UK voted to leave the EU.
Although it will still be necessary for those with permanent residence documents to make an application under the new system to obtain settled status, the good news is that:
- The application will be free; and
- In order to succeed, it will only be necessary to provide proof of ID, current proof of residence in the UK and there will be a criminality check.
It appears therefore that the application will be more straightforward for those who have gone to the trouble of submitting a permanent residence application in the past.
The other positive is that the agreement confirms that EU nationals who have obtained a permanent right of residence will be able to leave the UK for a period of up to 5 years and still retain the benefit of that status (whereas absences of only up to 2 years are permitted under the EU Directives).
Proving lawful residence in the UK
In order to decide whether an EU national or their family member have been ‘lawfully’ living in the UK to qualify for settled status, the test will be whether a person was living lawfully under the EU regulations. The main categories of lawful residence under the EU regulations are:
- Self-sufficient persons
The UK authorities will take a ‘pragmatic’ approach to deciding whether people have been lawfully present in one of these categories. Previously published technical notes have stated that, for example, there will be no need to evidence that a person holds comprehensive sickness insurance which is usually a requirement for students or self-sufficient persons. This will be a great relief to many EU nationals who have spent periods in the UK as a student and who never knew of the need to hold insurance policies. Another pragmatic approach will be taken with respect to EU nationals not needing to show that the work they have been involved in is ‘genuine and effective’. This suggests there will be less emphasis on EU nationals showing the number of hours they worked to be considered a ‘worker’.
It remains to be seen the extent to which documents will need to be provided however the suggestion has been that the Home Office will try and use technology to limit the amount of documents that will need to be sent (by, for example, instead accessing HMRC records). This is a new approach for the Home Office and certainly very different from what was required for many applicants applying for EEA permanent residence documents.
Another important concession has been that the withdrawal agreement will protect EU nationals with respect to their right to bring family members to the UK, even after the UK leaves the EU.
As long as a person was a family member of the EU national at the date of the UK’s withdrawal, the EU national will continue to have the right to sponsor that family member to come to the UK in the same way as they are currently able to, and this right will continue for the life of the EU national.
Children born after the UK’s departure from the EU will also the right to come to the UK with parents if:
- Both parents are EU nationals with a right to reside in the UK on the specified date;
- One parent is an EU national with a right to reside in the UK on the specified date and the other parent is a British citizen; or
- The parent is an EU national with a right to reside on the specified date, and has sole responsibility for the child.
Remedies if an application is refused
The rights for EU nationals will be contained within the Withdrawal bill, and they will take precedence over any other laws that are incompatible with those rights. An applicant will have a right of appeal to the UK courts if an application is refused.
If there is uncertainty over the interpretation of provisions relating to citizen’s rights, there will continue to be a mechanism that allows UK Courts to refer questions to the European Court of Justice for a period of up to 8 years following the UK’s departure from the EU.
The process of registering millions of individuals under a new scheme, which has had to be implemented in a very short space of time, will present an administrative burden on the Home Office the like of which has never been seen. However, the documents published by the government stress that they will make the process of application user-friendly and it is a positive development that the scheme will be open for applications even before the UK leaves the EU.
There is a potential for serious injustice in any new system, where a set of rules which have existed for decades but never been enforced suddenly start being applied on a mass scale. It is easy to imagine many circumstances where an individual may not fit neatly within the rules to qualify for settled status – one example would be a parent who stopped working to care for a child with a disability. It is to be hoped that the Home Office produce detailed guidance which sets out the circumstances where discretion will be exercised even if individuals don’t fit neatly within the ‘qualified’ categories to obtain settled status.