In December 2017 the UK government reached a deal with the European Union on key issues relating to free movement as part of the first phase of the Brexit talks. At this stage the deal does not apply to citizens of Norway, Iceland, Lichtenstein and Switzerland, although it may be extended to cover them in the future.
Settled status
Under the deal, all EU citizens (other than Irish citizens) who are currently in the UK and who have been in the UK lawfully for at least 5 years prior to 29 March 2019 will be eligible for settled status and must apply for this status within 2 years of 29 March 2019. This will not be automatically conferred and the EU nationals will therefore have to apply for settled status. Those who already hold a permanent residence document will need to have it converted into a settled status document. We understand that this will not necessitate a whole new application but the holder will need to go through a criminality and security check and prove that they still live in the UK.
Those who arrived in the UK before 29 March 2019 but who have not spent five years here will need to apply for temporary status and after five years in the UK must apply for settled status. It is not yet clear how exactly applications will be made but it is expected to be an online process and relatively straightforward.
However, it’s important to note that only EU citizens who are legally resident in the UK will be eligible for temporary or settled status. This means that EU nationals who have acquired permanent residency but who have left the UK may not qualify for settled status. Further, they must also be and continue to be a worker, self-employed person, self-sufficient person or lawfully retain these rights on 29 March 2019. The agreement does not say what will happen to those EU citizens who do not meet these requirements.
Helpfully, EU citizens who have been in the UK on a self-sufficient basis or as students should not need to show that they held comprehensive sickness insurance in order to qualify for settled status.
Anyone who fails to apply for settled status or temporary status by 29 March 2021 will in most cases be in the UK unlawfully and, as such, will be committing a criminal offence.
Family members
Family members of EU nationals who are in the UK before 29 March 2019 will also be able to apply for temporary or settled status if they came to the UK before 29 March 2019. However, reunion rights will be far more limited in respect of family members wishing to move to the UK after Brexit and only close family members will be able to join EU nationals in the UK after 29 March 2019. Close family members include spouses, civil partners, durable partners, children or grandchildren under 21, dependent children or grandchildren over 21 and dependant direct relatives in the ascending line of the EU citizen or his/her spouse.
Potential loss of settled status
Importantly, once settled status has been obtained it can be lost, especially if an individual is absent from the UK for lengthy periods.
In some cases, EU citizens and their family members could also lose their right to remain in the UK and could be removed from the UK or banned from applying for British citizenship if they acquire a criminal conviction after 29 March 2019.
Appeals
Those refused settled or temporary status will have a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber). However, the UK has also had to accept the Court of Justice of the European Union will remain the final decision maker of the interpretation of EU law for the rights of EU citizens, subject to certain caveats. This was a very significant concession for the UK to make and means the CJEU is likely to have the final say on the rights of EU citizens in the UK for at least 8 years post Brexit.
What benefits will EU citizens have?
EU nationals with settled status will be able to claim public funds in the same way as British nationals. Those with temporary status who are workers or self-employed will be able to access the same benefits as British citizens but those who are not working will have more limited access to public funds.
EU citizens will also continue to be able to access the NHS in the UK. We understand that EU citizen students will continue to pay home fees if they wish to study at UK universities and will have access to tuition fees loans.
Final thoughts
Although a preliminary deal has been done and has provided a sliver of much needed clarity, it is still not clear to what extent EU citizens will be able to come to the UK after 29 March 2019, the full extent of the rights they will have or the immigration system that will apply to them.
The picture of post-Brexit Britain will emerge as deals are done or not done as the case may be. Whatever the end system looks like we anticipate it is likely to be much more restrictive than the current one.
We recommend that EU nationals and their family members consider applying for permanent residency now if they qualify and it should then be relatively straightforward to convert this into settled status. EU nationals who already have permanent residence status should also consider if they may be eligible to apply for naturalisation as a British citizen before Brexit.
Kerry Garcia