As negotiations with the EU have now properly commenced, one of the first priorities on both sides is to agree what will happen to EEA nationals living in the UK, and for British Citizens living abroad in other EU countries. The UK have now published a document ‘Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’ which provides us with some long-awaited detail about what will happen to EEA nationals once the UK leaves the EU. This article summarises some of the key pieces of information disclosed in the publication for EEA nationals and their right to remain in the UK. I have also identified some key information that we do not yet know.
There will be changes
The document published confirms that as the UK wish to have the option of controlling migration from EU countries, there will be a new system which requires all EU nationals and their family members to apply for status documents proving their right to live in the UK.
The government’s proposals confirm:
“This will be a legal requirement but there is also an important practical reasons for this. The residence document will enable EU citizens (and their families) living in the UK to demonstrate to third parties (such as employers or providers of public services) that they have permission to continue to live and work legally in the UK. Following the UK’s exit from the EU, the Government may wish to introduce controls which limit the ability for EU citizens (and their families) who arrive in the UK after exit to live and work here…”
The document confirms the application procedure will be announced in more detail closer to the time, but that the application will be made ‘as streamlined and user-friendly as possible’. For example, the government will seek to minimise the burden of providing documentary evidence and access existing government data held such as income records.
Further, the government have confirmed that all EEA nationals will need to apply for this new form of status, even those who have previously been granted documents showing they have a right of permanent residence in the UK. However, they will aim to make the system ‘as streamlined as possible’ for those in this situation.
Who will qualify for Status Documents?
Currently, EEA nationals qualify for a right of permanent residence once they have lived in the UK as a ‘qualified’ person for a continuous period of 5 years. This has presented difficulties for many EEA nationals who may have had breaks in their ‘qualified status’. One common problem is that many EEA nationals were not aware that they were required to hold a private medical insurance policy or other insurance cover to be a ‘qualified’ person whilst they were a student.
This system is going to be replaced with new criteria for EEA nationals. The government have indicated that there will be two primary criteria to qualify:
1) That the applicant has been ‘resident’ in the UK for a set period of time (most likely to be 5 years); and
2) The applicant is not considered a threat to the UK on an assessment of their criminality and conduct.
Happily, the government have confirmed that they will no longer require evidence of holding insurance documents in order to be considered continuously resident. This will enable many EEA nationals to apply for ‘settled’ status under the new system who would not qualify for a permanent residence document under the current set of rules that apply to EEA nationals.
The published offer further confirms that, as long as an EEA national arrives before a particular ‘specified date’ then they will be given the opportunity to establish 5 years residence and qualify for settled status. We have not yet been told what the ‘specified date’ will be, but we know that it will fall between the 29th March 2017 and the date that the UK leaves the EU. This date is to be decided following negotiations with the rest of the EU.
The document also confirms that ‘family members’ of EEA nationals will also be able to apply for settled status following 5 years continuous residence.
If an Applicant will not have reached the 5 year point before the UK leaves the EU, they will be given a grace period within which to apply, and if necessary, can apply for a period of leave to remain after the UK leaves the EU to allow them to get up to the 5 year point and qualify for settled status at that point.
When do EEA nationals need to apply?
The documents says there is no need for EEA nationals to apply now for EEA documents, as their current rights will continue until the UK leaves the EU. However, the government will continue to process applications which are received. It is therefore only those EEA nationals who wish to apply to naturalise as British Citizens who will need to go through the process of applying for a document certifying permanent residence now.
The government have confirmed that there will be a ‘grace period’ for EEA nationals to make an application after the UK leaves the EEA. This is likely to be a period of 2 years. During this period of time EEA nationals will be ‘deemed’ to be granted leave to remain which means they will continue to be lawfully present in the UK. EEA nationals will need to make their application to regularise their position within this 2 year period to continue having a right to remain in the UK.
The grace period of 2 years is clearly a sensible measure given the impracticalities of the government having to process applications from approximately 3 million applicants simultaneously. The government have further confirmed that they will introduce the ability to apply under the new application procedure before the UK leaves the EU to enable EEA applicants who wish to apply at the earliest opportunity to make the application even before the UK leaves the EU.
What we do not know:
We have yet to be provided the following key information:
1) What the specified date is by which time EEA applicants will need to be in the UK to benefit from the proposals in the offer;
2) What new system of rules will apply to EEA nationals or their family members who arrive after the ‘specified date’;
3) What the fee for the new application procedure is – the document states this will be set at a ‘reasonable level’. The current fee for applications for indefinite leave to remain (which is the status that will be given to EEA nationals who qualify) is £2,297.00. This contrasts with the fee for making a permanent residence application under the EEA regulations of £65.00. Clearly the cost of making the application (given that there will be approximately 3 million people needing to apply) will be of considerable interest;
4) What documentary evidence of ‘residence’ will need to be provided as part of the new application procedures; and
5) Whether the UK will win on its negotiating position that it will be the UK domestic courts that are responsible for settling disputes over the rights of EEA nationals rather than the European Court of Justice.
Paragon Law have an experienced and established team of Immigration lawyers who specialise in providing advice to EEA nationals and their family members. We have also been regularly involved in providing training on the impact of Brexit to staff members at Universities and Employers. Please contact us if you require expert assistance in these areas.