The British government has published a technical note setting out its proposed administrative procedures for EU citizens living in the UK – and their family members – who want to stay on after Brexit.

There are no surprises in the document. Much of the content has already been signalled in the June 2017 policy paper, in the Prime Minister’s Florence speech in September 2017, and in the various joint technical notes comparing the EU and UK positions on citizens’ rights which have been published after each round of negotiations.

Here are the key points from the proposals:

Legal basis

  • The rights of EU citizens living in the UK will be set out in the Brexit withdrawal agreement and incorporated in UK law.

Process and timing

  • EU citizens who want to continue living in the UK will need to make an application to obtain a new status. The application process will also be completely new. It will be simpler than the current voluntary system for registration certificates and permanent residence documents issued under EU law. There will be a right of appeal.
  • EU citizens and their family members will have to apply “within a period of time after exit as specified by the UK authorities”, which will last “around two years” after the UK leaves the EU in March 2019. The new process will be launched before the UK leaves the EU.
  • The authorities will consider exercising discretion to allow a late application if there are good reasons why it could not be made before the deadline.

Cost

  • The application fee will not exceed the cost of a British passport, which is currently £72.50 for an adult and £46 for a child.
  • For EU citizens who already have a permanent residence document there will be a simpler process and a reduced fee.

Eligibility

  • Applicants will need to provide evidence that they were “lawfully resident” in the UK before the “specified date”. (Note: the “specified date” has not yet been confirmed. It could be any date between 29 March 2017 and 29 March 2019. Most observers believe that it is likely to be 29 March 2019.)
  • Applicants who have not been working will not have to show that they have held comprehensive sickness insurance.
  • There will be criminality check. Criminal conduct up to the date of the UK’s withdrawal from the EU will be assessed in accordance with EU law, meaning that the applicant will be disqualified if they pose a serious threat to the fundamental interests of society. Criminal conduct after the UK’s withdrawal will be assessed against UK national law. Deportation will be considered if an applicant has received a prison sentence of 12 months or more.

Settled status

  • EU citizens who meet the conditions for permanent residence under EU law – usually five years’ lawful residence as a worker, self-employed person, student or self-sufficient person – will be granted settled status.

Temporary status

  • EU citizens who do not meet the conditions for permanent residence but can show that they were living in the UK before the “specified date” will be given temporary status. They will be allowed to stay in the UK until they have built up the five years’ residence needed to apply for settled status.

Unsuccessful applicants

  • EU citizens who apply for the new status and are refused will be in the UK unlawfully after the end of the “specified period” unless they secure a different type of immigration status. They will not be allowed to work and may be asked to leave the UK.

New arrivals

  • During the “implementation period” after the UK leaves the EU (which is presumably the same as the “specified period”) EU citizens will be continue to be able to come and live and work in the UK. There will be a registration system for them.

The document leaves many unanswered questions. For instance, what will happen to EU citizens who are not working and cannot provide evidence that they are self-sufficient? What rules will apply to non-EU family members joining EU citizens in the UK after the withdrawal date? If someone is granted settled status but can show that they met the requirements for permanent residence more than one year earlier, will their deemed date of acquisition of settled status be backdated? (This may be important for people who wish to apply for British citizenship.) For EU citizens arriving during the two-year implementation period – what will their status be after the end of the implementation period? And what will happen to other EEA nationals (citizens of Norway, Iceland and Liechtenstein) and Swiss nationals?

It should be remembered that these are just proposals. The negotiations between the EU and the UK are continuing. In the meantime we recommend that EEA nationals who qualify for a document certifying permanent residence apply for one now and that they consider applying for British citizenship.