Following on from our blog on Friday, the Government has now issued a policy document outlining more detail about its offer to EU nationals living in the UK (and UK nationals living in the EU). You can read the policy document here.

“Settled Status”

The UK Government is proposing to create a new “settled status” in UK immigration law. EU nationals granted this status will be able to work and study in the UK; live permanently in the UK with a partner who is also settled or is a UK national; and have access to all benefits and public services in the same way as UK nationals.

Eligibility for settled status will depend on when EU nationals first became resident in the UK and how many years continuous residence they have by the time they reach one of the following dates:-

  • the “specified date” which is yet to be set but will likely fall between 29 March 2017 and the date of the UK’s exit from the EU; or
  • the date the UK leaves the EU if that is later than the specified date; or
  • at the end of a “grace period” which is likely to be 2 years after the date of exit from the EU.

This will work as follows:-

  • EU nationals resident in the UK prior to the specified date and who have 5 years continuous residence either at the specified date or at the point of exit can apply for “settled status” under the new UK scheme when it opens or within the grace period;
  • Those EU nationals resident in UK prior to the specified date but who have not accrued 5 years’ continuous residence by the time the UK exits the EU, will be allowed to remain in the UK and, if they can achieve 5 years’ continuous residence within the further 2 year grace period they will be entitled to apply for settled status;
  • There may be some EU nationals who come to the UK prior to the specified date but who will still not be able to achieve 5 years’ continuous residence by the end of the relevant grace period. Individuals in this category will be able to apply for temporary leave to remain in the UK until they reach 5 years’ continuous residence at which point they will be able to apply for settled status; and
  • Those EU nationals arriving after the specified date will have to apply to the Home Office for permission to stay in the UK in accordance with new rules which are yet to be determined.

Further eligibility criteria will probably have to be met before settled status will be granted. Those will include the requirement to pass an assessment of conduct and criminality as is currently the case for applications for permanent residency. However, the requirement for those who have lived in the UK as students or as self-sufficient individuals to have comprehensive sickness insurance will not be replicated which will be a relief to many EU residents for whom this has been a problem under the current permanent residency application process.

Note that the Common Travel Area will be maintained so that there will be no immigration control over nationals coming to the UK from Ireland or the Crown Dependencies (Isle of Man and Channel Islands) and those from Northern Ireland will continue to be able to identify as British or Irish or both. Otherwise the rules will apply in the same way to all EU nationalities with no different requirements for those from Eastern European countries as there has been to date.

These new rights for EU nationals will be enforceable through the UK courts up to and including the Supreme Court and the UK Government is clear that the European Court of Justice will have no jurisdiction in the UK.

Application process for settled status

A new process will be established to deal with settled status applications and it will replace the one currently used for permanent residency applications. We are promised a process which is reasonably priced, streamlined and user friendly. That will be of little consolation to those EU nationals who have already navigated the complex permanent residency application process (or who are currently in the middle of it) and who will have to make a fresh application for settled status. Those EU Nationals considering whether to make their permanent residency application may want to hold off doing so for now until the application process for settled status becomes clearer. Details are to be advertised “in due course”.

Other highlights

The policy document also sets out the UK Government’s proposals on reciprocal access to benefits and public services such as healthcare, education and social housing; attempts to provide some certainty for EU students starting courses at English further education institutions and universities in academic years 2017/18 and 2018/19; addresses the issues relating to the mutual recognition of professional qualifications and confirms that it intends to apply annual increases to UK state pensions payable to UK nationals residing in the EU.

This represents the UK’s opening offer on the position of EU nationals living in the UK post Brexit but it is contingent both on the UK Government securing a reciprocal agreement with the EU27 on the rights of UK nationals in the EU and more widely on the overall approach of the EU27 to the Brexit negotiations. There is a real possibility that this offer will change as the negotiations progress.