In an attempt to lay to rest fears and anxieties that have been prevailing among many EU nationals for the past year over their fate after Brexit, the government has finally announced its proposed plans in relation to more than 3 million EU nationals currently living in the UK under EU rules, and what they should be expecting after withdrawal from the EU is completed. It is worth noting that the said proposal is subject to negotiation and change, and its final version has yet to be agreed.
In its policy paper published on 26 June 2017, the government acknowledged that EU nationals have become ‘valued members of their communities’ in this country in exercising their free-movement rights. The UK will stand by its commitments as a member of the EU in relation to EU migrants until it actually leaves the bloc at a future date. After leaving the EU, a new regime will apply that would involve creating new rights, to be put into UK law, for qualifying EU nationals who had been resident in the country before the withdrawal. The government proposes that those rights provide guarantees for resident EU nationals and that the UK courts have powers to adjudicate and enforce those rights. There will be no role for the Court of Justice of the European Union (CJEU) in this process, according to the government’s proposal.
A new legal regime is to be introduced with respect to the application process itself, which will be part of UK law, as opposed to the current regime of applying for permanent residence where the rights of EU citizens, stipulated in EU law, are merely certified. The government guarantees that people who have been continuously resident in the UK for five years will be granted ‘settled status’ (indefinite leave to remain under the Immigration Act 1971), provided that they had been resident in the UK before a specified date. That date has yet to be determined but is expected to be between 29 March 2017, the date when Article 50 was triggered, and the actual date of the UK’s withdrawal from the EU. Separate provisions are proposed for those arriving before the specified date but not having five years’ continuous residence on the day of the actual withdrawal. There will be a temporary status available for them to apply for so that they can remain lawfully resident in the UK until they have accumulated five years, and then they can apply for ‘settled status’. For those arriving after the specified date, however, provisions are to be made for their temporary status, but the government gives no guarantees that settled status will subsequently be granted to them. It would appear that all applicants under the new regime will have to provide their biometrics and be subject to the criminal-record check, and those who can be described as ‘serious and persistent’ criminals or a ‘threat to the UK’ will be denied the right to apply for settled status and may be deported.
There has been a barrage of criticism from various EU officials, including chief Brexit negotiator Michel Barnier and various MEPs, who describe the proposal as in need of ‘more ambitions, clarity and guarantees’ so that EU citizens in the UK can be given the same level of protection after Brexit as they would have been under EU law. Potential points of disagreement might include conflicting views on the role of the CJEU, the requirement for those holding a certificate of permanent residence to undergo another registration process under the new regime and the right to bring in family members after Brexit without having to meet any income threshold requirement.