Prime minister Theresa May has announced the UK’s proposal for post-Brexit EU citizen rights. Notice of the offer was followed by publication of the full terms – and criticism swiftly ensued. What will happen next, and what will come of future talks, remains to be seen. The signs, however, are not particularly hopeful.
Overview of the UK’s proposal
The UK’s offer, extended with the expectation that reciprocal rights will be afforded Britons living in the EU, applies to EU nationals, as well as citizens from Norway, Iceland, Liechtenstein and Switzerland, with no preferential treatment being given to any member state.
Until the date of Brexit, EU law, including free movement, will determine the rights of EU nationals and their family members living in the UK. Following withdrawal from the union, UK law will apply, thus removing jurisdiction from the Court of Justice of the European Union in related matters.
Broadly speaking, primary EU national applicants will fall into three categories:
- EU nationals who arrived in the UK before the cut-off date and have five years’ continuous residence;
- EU nationals who arrived in the UK before the cut-off date and do not have five years’ continuous residence; and
- EU nationals who arrived in the UK after the cut-off date.
Although a specific cut-off date is not yet set, it will not fall before 29 March 2017, the date that Article 50 was triggered, or after the UK leaves the EU, which will probably be around March 2019.
The government stated that it intends to use existing government data, such as income records, to help EU migrants demonstrate their time in the UK as continuously resident
Following Brexit, the UK has proposed a grace period of up to two years (the exact period has not yet been agreed to), which will provide EU nationals with a ‘generic umbrella of temporary leave’ to apply for a new type of permission – called ‘settled status’ under the proposal – to remain in the UK. The grace period will apply to all EU nationals deemed to be lawfully resident in the UK, including those who arrived after the agreed cut-off date.
According to the government, ‘settled status’ will provide EU citizens with access to benefits comparable to those of British nationals.
Migrants seeking to obtain ‘settled status’ will need to meet specific requirements. Though explicit details will be set out in future UK legislation, the general criteria thus far are that applicants meet a period of continuous residence (likely to be five years), and pass an assessment of their conduct and criminality. In most cases, ‘settled status’ would be lost were an individual absent from the UK for more than two years.
Although the application process for ‘settled status’ remains unclear, the government stated that it intends to use existing government data, such as income records, to help EU migrants demonstrate their time in the UK as continuously resident. In addition to this information, passports and biometric data will probably be required.
Classes of migrant
How different classes of migrant will be affected:
- Arrival prior to the cut-off date and five years of continuous residence: EU citizens, who are lawfully in the UK prior to the cut-off date and who have been continuously resident for at least five years, will be permitted to apply to stay in the UK indefinitely under the new ‘settled status’ designation. This will include continued rights, such as access to healthcare, education, benefits and pensions.
- Arrival prior to the cut-off date, but fewer than five years’ continuous residence: EU nationals who arrived before the cut-off date, but who have not resided in the UK for five years, will also be allowed to apply for leave to remain. Once they have been continuously resident in the UK for five years, they will be eligible to apply for ‘settled status’.
- Arrival after the cut-off date: EU migrants who arrived after the cut-off date will be required to apply under the post-Brexit immigration rules for EU nationals, which have not yet been announced. Those who arrive after the cut-off date, but before the UK exits, will be eligible to stay during the grace period.
- Family members: EU and non-EU family members of eligible EU citizens, who are living in the UK before Brexit, will be permitted to apply for ‘settled status’ once they have been continuously resident for five years, and provided they pass the conduct and criminality assessment. Non-EU family members seeking to join an EU national in the UK after Brexit will be subject to the rules for non-EU nationals joining British citizens, while EU nationals will be subject to the rules established for EU migrants following Brexit.
- Irish nationals: As the Ireland Act 1949 predates membership of the EU and Irish nationals therefore remain entitled to the rights afforded under the act, the UK maintains that Irish citizens will not be affected by any of the changes.
- Citizenship: EU nationals with ‘settled status’ and a minimum of six years’ continuous residence will be allowed to apply for UK citizenship.
As noted, EU nationals will continue to enjoy free movement and all the associated rights and benefits up to the point of Brexit. However, under the current proposals, once the UK leaves the EU, all EU citizens will be required to apply for permission to stay, regardless of their arrival date.
EU citizens wishing to bring their spouses to the UK following Brexit will be subject to domestic immigration laws and they will be required to have an income of at least £18,600 to bring their non-EU family member. Critics fear that this could split families
To accommodate this significant administrative undertaking, the government intends to introduce an online application process in 2018, which will initially be voluntary. It is hoped that between voluntary applications prior to Brexit, and mandatory applications during the grace period, there will be sufficient time and resources to process all applications.
Unfortunately, as ‘Permanent Residence’ status is linked to membership of the union, EU nationals who have documentation of this status in the UK will still have to apply for the new ‘settled status’.
Points of contention
Criticism of the UK’s offer, from both foreign and domestic sources, has been quite severe. Points of contention include:
- It is not clear when in 2018 the online application system will be up and running or what it will entail.
- The cut-off date remains undecided. As the UK would like to see it on or as close to the date of triggering Article 50 as possible, but the EU would prefer to extend it to the date of Brexit, there are concerns that it will be used as a bargaining chip during negotiations.
- Those EU citizens who already applied for and received permanent resident status will have to reapply for the new ‘settled status’.
- EU citizens wishing to bring their spouses to the UK following Brexit will be subject to domestic immigration laws and, as with UK citizens, they will be required to have an income of at least £18,600 in order to bring their non-EU family member. Critics fear that this could split families.
- It is unclear how the UK plans to process the millions of applications it is expected to receive. According to The 3 Million, a forum for EU nationals living in the UK, it could take 47 years to complete applications for the EU nationals currently living in the UK.
- Cross-border commuters and short-term contractors, who reside in Britain but work on the continent (and vice versa), may lose their ability to engage in this type of work.
- The EU views some of the proposed changes to EU migrant rights, including the potential loss of ability to vote in local elections, being subject to the minimum salary threshold for EU nationals who want to bring a family member in the future, and the removal of EU jurisdiction, as chipping away at the current rights and effectively making EU citizens third-country nationals. This, it is argued, runs counter to the UK’s assertion that the rights of established EU migrants in the UK after Brexit would not change.
It remains unclear what will come of the UK’s offer, though the EU was not shy in its initial assessment with Guy Verhofstadt, the European parliament’s Brexit coordinator, describing the proposal as a ‘damp squib’ and warning that the EU may reject it. Indeed, round two of talks in July failed to produce sufficient ‘convergence’ on the issues of the UK’s exit bill of EU/UK citizen rights. Consequently, Michael Barnier, the EU’s chief negotiator, cautioned that the negotiations would not move to trade, a key issue for Great Britain, until the UK provided clarification on both matters. Of concern, as May has repeatedly warned, a breakdown in talks could lead to the UK taking no deal rather than what it perceives as a ‘bad’ deal. And while it is implausible that the UK would force three million EU nationals out of the country were negotiations to fail, it seems doubtful that a better outcome than what is currently on offer could result.
Laura Devine is principal of Laura Devine Solicitors and Laura Devine Attorneys LLC