Following months of negotiations, the UK and EU have finally concluded the first phase of negotiations. A joint report was published on 8 December 2017 by the UK government and the European Commission. This confirms both parties have reached agreement, in principle, on protecting the rights of Union citizens in the UK, and UK citizens in the Union, the framework for addressing the circumstances in Northern Ireland and the financial settlement.

Role of the ECJ

Through the Withdrawal Agreement (negotiations for which have not yet been completed) and Implementation Bill, the rights of EU citizens will be written into UK law when we leave the European Union.

The future role of the European Court of Justice (ECJ) had been one of the most contentious areas of negotiation. The rights of EU citizens will be enforced by UK courts but, according to Theresa May, “where appropriate, our courts will pay due regard to relevant ECJ case law.” For a period of 8 years after we leave the EU, the UK courts may choose to ask the ECJ for an interpretation prior to reaching their own decision.

Settled status scheme

As we are already aware, a new settled status scheme will be introduced for EU citizens and their family members. According to the Home Office, “it will be easy to apply for settled status and there will be a full right of appeal.” Theresa May has reiterated the application will cost “no more than applying for a passport”, but the exact cost remains unknown.

On Tuesday 12 December 2017 the Immigration Minister, Brandon Lewis, added that the Home Office are looking to develop the online process of applying for settled status as “where somebody spends literally a few minutes online and within a couple of weeks your settled status is dealt with and granted.”  They plan to draw on existing government data, for example HMRC records.

Considering there are nearly 3 million EU nationals living in the UK, it will be interesting to see how the government deals with such a large volume of applications. It is likely that they will need to find a way of staggering them, if they are to avoid being inundated as soon as the scheme opens.

EU citizens with a Permanent Residence document will be able to convert to settled status, free of charge, from the second half of 2018. They will need to provide an identity document, confirm they still reside in the UK and declare any criminal convictions (which will be checked).

After 29 March 2019

It has been confirmed that there will be a transition period, during which EU citizens can move freely to the UK and UK citizens to the EU. It is likely to be around two years, but this is still not confirmed and we still do not know yet what rules will apply to those people.

A key topic for negotiations was the rights of extended family members. EU nationals currently enjoy more generous rights than British nationals in the UK, and the UK government wishes to curb this. However, they have now agreed that EU nationals who are living in the UK by 29 March 2019 will still be able to bring existing extended family members to the UK after we leave the EU, for example dependant parents and grandparents. These rules will also apply to non-EEA spouses, so long as the couple were married before 29 March 2019.

Settled status will be lost if the individual leaves the UK for more than 5 years.  Indefinite leave to remain is lost if the holder leaves the UK for 2 years, so this provision for EU nationals is more generous.