EU immigration has featured strongly this week in both the Queen’s Speech and the European Summit in Brussels.

The Queen’s speech and Immigration Bill

An Immigration Bill was proposed in the Queen’s Speech which really will focus on EU immigration. The Bill is intended to repeal EU free movement law and bring migrating EU nationals under the UK immigration system. The Act will apply to the whole of the UK (immigration being a reserved matter) although there are reports that the UK and Scottish Governments have been holding discussions on immigration policy. Unfortunately a lot of questions were left unanswered in the Queen’s Speech. It is not at all clear what immigration restrictions will be placed on EU nationals coming to the UK in the future and whether there will be transitional arrangements post-Brexit.

Guarantees to EU Nationals living in the UK?

The Queen’s speech did not include any commitment to guaranteeing the rights of EU nationals currently in the UK.

Theresa May nevertheless attempted to provide some certainty to EU nationals at yesterday’s European Summit in Brussels. There, she announced the UK Government’s intention to allow EU Nationals currently living lawfully in the UK to remain after Brexit. It is proposed that EU nationals who have lived in the UK for 5 years by a cut-off date (still to be set) will be granted “settled status” with various associated rights including the right to work and receive healthcare benefits and pensions. Those who have lived in the UK for less than 5 years by the cut-off date will be allowed to remain until they have 5 years residency at which point they will presumably also achieve “settled status”.

The relevant cut-off date is likely to be set at some point between 29 March this year (when Article 50 was triggered) and 29 March 2019 when the UK is expected to leave the EU. If the cut-off date selected falls before the date of Brexit, those EU nationals arriving in the UK before then will be given a period of grace to regularise their status.

Does this help provide any certainty to the 3 million EU nationals currently living in the UK? Significant caveats still remain.

Firstly, the proposal made by Theresa May in Brussels is contingent on British expats living in Europe being given the same assurances. It is not clear if this assurance will be given – the EU wants any deal to be conditional on the European Court of Justice being able to monitor and enforce EU citizens’ rights in the UK, while the UK Government has said they will (and must) be protected by UK courts. For as long as the parties continue to disagree on this point, EU nationals in the UK will not get certainty on their future rights.

Further, it is not yet clear exactly what rights EU nationals will have if the proposals are accepted as part of the Brexit negotiations. Will those with settled status be allowed to bring family members who are not settled in their own right to live with them in the UK? Will there be eligibility criteria to be met other than 5 years’ residency requirement? How and what will be required to evidence 5 years’ residence by the cut-off date?

Further details about the proposals are expected from the UK Government on Monday (26 June).

Until there is more clarity, many eligible EU nationals will be left considering whether they should apply now for permanent residency under the existing European and domestic regime.