The government has released a policy paper on the proposed rights of EU migrants in light of Brexit 'Safeguarding the position of EU citizens in the UK and UK nationals in the EU'.

The facts

Existing Rights

  • All Treaty rights up to the point of exit will be honoured.

  • British/Irish citizen rights will be protected by the Common Travel Area and Belfast Agreement. There will be no need for Irish citizens to apply for settled status.

New Settled Status

  • All EU Nationals irrespective of country of origin will be treated the same going forward.

  • Rights will be determined by reference to a date to be fixed (by negotiation) between 29 March 2017 (when Article 50 was triggered) and the exit date.

  • EU Nationals (resident at the reference date) will acquire a right to apply for settled status after 5 years residence. 'Settled Status' will be a new creation in UK law akin to indefinite leave to remain and will mean that the individual is free to live in any capacity, undertaking lawful activity, access public funds and services and to apply for citizenship (after 6 years).

  • On Brexit there will be an assumption that all EU Nationals and their families will have a blanket generic status of 2 years temporary leave in which to apply for a new residence document/settled status. If they are not in possession of such a permission/document at the end of the 2 years they will be subject to the new rules (to be determined) which come into force post Brexit.

  • EU citizens who arrive in the UK before the reference date but don't have 5 years residence by Brexit can apply for a temporary status to remain while they continue to accrue the 5 years residence. Once qualified, they can apply for the new 'settled status'.

  • Post Brexit, EU Nationals who have lawfully settled in the UK, will have to meet the minimum income threshold of £18k in order to bring in a spouse.

  • Family dependants who join their family member before Brexit will be able to apply for settled status after 5 years (including non EU) providing they have a "genuine relationship" with the EU citizen.

  • New arrivals (post Brexit) will be subject to new, as yet undetermined/disclosed rules.

Application Process - this is likely to be the biggest logistical challenge and no detail of likely costs have been released. The current estimate is that it will take 47 years at current rates to process the potential 3 million EU residence applications.

  • There will be a new system for applying for 'settled status' under UK law. These new rights will only be enforceable in the UK legal system.

  • There is no requirement to apply for permanent residence/settled status now, although there will be a voluntary scheme made available before Brexit.

  • The new system of application will be a light touch online digital system using data from HMRC to streamline the process. Fees will be "reasonable", and suggestions are of a fee akin to the current £65. Applicants are likely to have to provide a passport and biometric data. There will be no requirement for evidence of past comprehensive sickness insurance from economically inactive (self sufficient/student) EU citizens.

  • Those who already have Home Office residence documents will need to reapply under the streamlined process.

Students

  • Students commencing courses in 2017/2018 and 2018/2019 will continue to be eligible to reside for the duration of their course and have access to student support/loans and home fee status for the duration.

Professional qualifications

  • The UK will seek to ensure that citizens with professional qualifications obtained prior to Brexit will continue to have them recognised.

Healthcare

  • The aim is to continue the EHIC scheme.

  • Longer term, there will be a continuing system whereby each country reimburses the home country for treatment.

What does this mean for employers?

At this stage, the policy paper represents the offer that the government is making in relation to the status of EU Nationals post Brexit. Employers and employees can take some comfort from the intent to allow those already lawfully residing in the UK to settle permanently. The position in relation to dependants who are not already residing in the UK and those with derivative rights is less clear and ultimately is likely to depend what the new, as yet unknown, system looks like. While the government is taking the view that there is no need to apply for permanent residence now; those employees who have already reached, or are likely to reach, the 5 year threshold between now and Brexit may be better advised to formalise their rights now albeit this may mean paying the application fee (currently £65) twice.

Safeguarding the position of EU citizens in the UK and UK nationals in the EU