Bishop & Sewell

The UK government has finally unveiled a first list of proposals for the future of European citizens living in the UK but a great deal still remains unclear.

The government’s policy paper, which can be found here, is far from easy to understand as there are so many theoretical dates, as well as numerous questions left unanswered for European citizens.

In particular, it is important to bear in mind that these are proposals only and a great deal will depend on the outcome of Brexit negotiations.

From my initial reading, these are some of the headline points that emerge, although the paper contains considerably more information:

Significant Dates

The document deals with a number of crucial dates. Some of these are theoretical dates and to confuse matters further, the paper uses different terminology at different points. These are the dates you need to bear in mind when considering the paper:-

29 March 2017 – The date Article 50 was triggered, starting the UK’s exit process by formally notifying the EU of the UK’s departure.

‘Cut-Off Date’ or ‘Specified Date’ – This will be a date sometime between 29 March 2017 and, probably, the UK’s exit from the UK, expected to be in March 2019. The cut-off date has yet to be specified as it needs to be agreed with the EU. The paper hints at a couple of points that the cut-off date may even fall after the UK’s exit but this seems unlikely.

Summer 2018 – The expected date that the new UK laws on European citizens will come into force.

28 March 2019 – This is the date the UK is expected to exit the EU but this will depend on the process of negotiations.

‘Grace Period’ or ‘Blanket Permission Period’ – This will be a two-year period to run from the date after we actually leave the EU, which is expected to be March 2019. The Grace Period is then expected to run until March 2021.

European Citizens

Settled Status

‘Settled status’ is equivalent to the current concept of ‘indefinite leave to remain’ or ‘permanent residence’, i.e. it recognises the person’s right to reside in the UK permanently without having to apply for further immigration documentation.

Settled status will eventually replace the concept of ‘permanent residence’, which is currently used for European citizens and their family members. It appears to be identical in the following ways:-

  • It will be available to European citizens who have lived in the UK for five years
  • It can be lost by two years of absence from the UK
  • Those with settled status will have most of the same rights as British citizens in terms of benefits, education etc.
  • It must be obtained before citizenship can be acquired for

Those European citizens who moved to the UK before the ‘Cut-Off Date’ but who have not yet accrued five years in the UK as of that date, will be able to apply for documents confirming they have temporary permission to remain in the country in order to build up the five years needed for settled status.

It is not clear from an initial reading whether applicants must have been living in the UK “in accordance with EU law” during this period, which requires certain activities or certain documents for different categories of people.

For example, it states that comprehensive sickness insurance will not be needed for certain categories who need it now, suggesting that EU law may become irrelevant. However, it also states that the Home Office will do national insurance checks rather than requiring people to submit their payslips in order to demonstrate five years’ residence. This seems to suggest they will in fact need to have been working for five years rather than simply living in the country for five years. The detail should become clear with time.

The Home Office has suggested that people who have a document certifying permanent residence will eventually need to trade this in for a settled status document. However, these new laws will not come into force until summer 2018 at earliest and, in the meantime, anyone wishing to apply for citizenship will still need a document certifying permanent residence.

‘Cut-Off Date’ or ‘Specified Date’

It seems European citizens already living in the UK before this theoretical date will be treated far more favourably than those who arrived afterwards. If they are not already eligible for settled status, they will be able to apply for some kind of temporary residence document to allow them to remain in the UK to clock up the five years needed for settled status.

European citizens who arrive after the ‘Cut-Off Date’ or ‘Specified Date’ will apparently face much stricter requirements going forward. They will benefit from the ‘grace period’ (below) but thereafter will have no guarantees of being allowed to remain. The paper hints that they will be subject to the same requirements currently imposed on foreign nationals from outside the EU

‘Grace Period’ or ‘Blanket Permission Period’

All European citizens living in the UK at the start of this period will be able to remain in the UK for a further period of up to two years without needing to apply for any further documentation.

People relying on this Grace Period or Blanket Permission Period will have something called ‘deemed leave’ or ‘temporary leave’, which they will presumably be able to demonstrate simply by holding an EU passport.

The purpose of this period is to give individuals time to apply for the documentation needed on a long-term basis.

Once they obtain such documentation, their period of ‘blanket permission’ will come to an end.

Family Members & Relatives

The paper states that family members of European citizens will generally benefit from the same rights as an EU family member living in the country before the ‘Cut-Off Date’, regardless of the nationalities concerned.

However, it appears this depends on when the family member arrives in the UK, namely before or after the UK leaves the EU. Those already living in the country at our exit date from the EU will be given the same benefits as their EU family members.

Those arriving after we exit, will face tougher restrictions, in line with those already imposed on the non-EU family members of British nationals.

However, it seems that children will be given more favourable treatment. They will be eligible for documents that reflect the immigration status of their parents, regardless of whether they arrived before or after the exit date. In cases where a child is born in the UK to settled parents, they will automatically be British, as is the case at present.

One point that is not clear is who will qualify as a family member in less obvious cases i.e.  where there is a difference between EU law and UK law. EU law for example currently covers children up to the age of 21, as well as “extended family members”, which can include cousins, aunts, uncles, great grandparents etc. living in the same household.

As stated above, the policy paper is just a starting point and a very great deal more needs to be clarified. It is important to bear in mind that none of the above is set in stone and the UK’s proposals remain subject to agreement with other EU countries, who have been less than enthusiastic to date.

In any event, it seems that the earliest date these proposals would take effect would be next summer. In the meanwhile, we are still members of the EU and remain subject to EU law, including documentary requirements.

For some people, these proposals are a welcome relief, meaning they can sit tight to see what happens in coming months. For others, in particular those thinking about applying for British citizenship, it will still be best to apply for documents under the current system as quickly as possible.

While immediate next steps next will very much depend on the individual, everyone will be relieved that at least we are starting to get an idea of what might lie ahead.

For more information please contact our Immigration team on 020 7631 4141.

This article originally appeared on the Fisher Meredith website in June 2017.

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