Rights of EU citizens in the UK and UK citizens in the EU after Brexit

Rights of EU citizens in the UK and UK citizens in the EU after Brexit The agreement reached between the UK Government and the EU on 8 December 2017 2 Rights of EU citizens in the UK and UK citizens in the EU after Brexit A key concern for UK business is its ability to retain or attract EU workers in the wake of Brexit. Most employers want an immigration system that is simple to administer, inexpensive and which gives early certainty to EU citizens about their future status. Their worry is that without this EU citizens will be less likely to apply for jobs in the UK and those already in employment may be less inclined to stay. Likewise, the future framework for citizens’ rights between the EU and the UK will be relevant for EU businesses employing UK citizens and for the mobility of the workforce – from executive positions to trainee programmes – in businesses with operations in both the EU and the UK. An agreement on citizens’ rights was reached on 8 December following negotiations between the UK Government and the EU (the Agreement). This will ultimately form the Citizens’ Rights Part of the Withdrawal Agreement to be entered into between the UK and the EU. This briefing summarises the key outcomes and looks at the concerns businesses might have about them and the points that remain outstanding. The status of the Agreement We refer to an ‘agreement’ having been reached. This has been agreed by the UK Government, and was ratified by the European Council at meetings on 14 and 15 December. However, this must be interpreted in light of the caveat which applies to all Brexit negotiations: ‘nothing is agreed until everything is agreed’. However, we assume that little will change in this area as a result of the negotiations in other areas. Who does the Agreement apply to? The Agreement is reciprocal – it applies to the rights of EU citizens living in the UK and to those of UK citizens living in the EU. The UK Government has also confirmed that it expects the Agreement’s scope to extend to nationals of Norway, Iceland, Lichtenstein and Switzerland. What has been agreed? Much of what has been agreed is in line with, or not substantially different to, the UK Government’s proposals as published in June 2017 which are summarised in our previous briefing on this topic. The following key changes have been made: • it has been agreed that the ‘cut-off date’ will be the same as Withdrawal Date ie the date the UK leaves the EU - 29 March 2019 – and not some earlier date. We explain further below what this means and its wider implications; • close family members who wish to join their relatives will have more favourable rights to do so; and • once permission to stay has been granted, citizens will be able to reside elsewhere for up to five years before losing that permission (increased from two years under the previous proposals). The agreement is reciprocal. References below to EU citizens residing in the UK apply equally to UK citizens residing in the EU. Rights of EU citizens in the UK and UK citizens in the EU after Brexit 3 The Agreement confirms that: • All EU citizens residing in the UK at the point of Brexit will need to obtain an immigration status in UK law by applying for permission to stay. They will need to apply for a residence document from the UK Home Office as evidence that they have obtained this permission. This will be the case even if they already have permanent residence status in the UK (although there will be no charge to convert permanent resident status to a permission to stay). • Whether EU citizens will be able to obtain permission to remain in the UK after Brexit will depend on how many years’ continuous residence they have in the UK as a worker, self-employed person, student, self-sufficient person or a family member of one of the foregoing at the Withdrawal Date. • EU citizens who have been living in the UK continuously for five years or more before Withdrawal Date will be able to apply for ‘settled status’ under UK immigration law. This will mean that they will be allowed to stay indefinitely in the UK and have access to state benefits and public services in line with UK nationals. • EU citizens who arrived in the UK before the Withdrawal Date but who have been living in the UK for less than five years continuously by that date will not be entitled to settled status immediately from the Withdrawal Date. Instead, they will have to apply to the UK Home Office for a temporary residence permit after the Withdrawal Date. They will then be able to apply for settled status upon reaching five years of continuous residence in the UK. • EU citizens arriving in the UK after the Withdrawal Date will be able to stay in the UK until the end of a ‘grace period’ of no less than two years, starting on the Withdrawal Date (described further below), but will then be subject to the post-Brexit immigration regime that the UK Government decides to adopt for EU citizens. The post-Brexit immigration regime is still to be determined. Rights of EU citizens in the UK and UK citizens in the EU after Brexit (2) Rights of EU citizens in the UK and UK citizens in the EU after Brexit 4 • The Agreement also covers family members of EU citizens. The proposals are as follows: - where an EU citizen arrives after the Withdrawal Date, any family member of that citizen who subsequently joins them in the UK will be subject to national laws in place at the relevant time - where an EU citizen arrived in the UK before the Withdrawal Date, the rights of their family members will depend on when the family member joins the EU citizen in the UK. If the family member joins them: » before the Withdrawal Date, the family member (regardless of nationality) will be able to apply for settled status once he or she has five years’ continuous residence in the UK; or » after the Withdrawal Date, the family member’s right to reside in the UK will depend on their relationship. Close family members (spouses, civil partners and unmarried partners in a durable relationship, dependent children and grandchildren, and dependent parents and grandparents) will (regardless of nationality) be able to join their family member where the relevant relationship exists at the Withdrawal Date (subject to certain exceptions for children born/adopted after the Withdrawal Date) and remains as such at the date the person wishes to enter the UK. The rights of other family members will be subject to national laws in place at the relevant time. • To avoid a surge in applications by EU citizens and their families seeking residence documentation before the Withdrawal Date, all EU citizens and their families who arrive before the Withdrawal Date will receive blanket permission from the UK Home Office to remain in the UK for a ‘grace period’ starting on the Withdrawal Date. The Agreement provides that the length of the grace period shall be no less than two years. Only at the end of the grace period will EU citizens and their families be required to have settled status or a temporary residence permit in order to remain in the UK. • EU citizens or their family members who obtain settled status may (at the election of the host country) lose this status if they reside outside the UK for more than five years (absences for up to 6 months in any 12 month period, or 12 months for an ‘important reason’ such as childbirth do not count towards the five years), and will then become subject to the post-Brexit immigration regime if they subsequently wished to reside in the UK. • Irish citizens will not be subject to these changes. As the arrangements between the UK and Ireland do not stem from EU law, Irish citizens’ existing rights to live and work in the UK, and the Common Travel Area arrangements between the UK and Ireland, will be preserved after Brexit. There will therefore be no need for Irish citizens to apply for settled status in order to protect their current entitlements in the UK. Rights of EU citizens in the UK and UK citizens in the EU after Brexit (3) Rights of EU citizens in the UK and UK citizens in the EU after Brexit 5 What remains outstanding? In addition to the various details which will necessarily need to be finalised, the following are expressed as out of scope of this phase of negotiations: • the continuing protection of rights for UK nationals covered by the Withdrawal Agreement who move after 29 March 2019 to take up residence in another Member State; • posted workers (ie workers who are sent by their employer to work temporarily in another country to provide a cross-border service). The exclusion of this category of workers from this phase of negotiations may mean that a special deal will be agreed in relation to the immigration and labour laws applicable to them; • future healthcare arrangements; • professional qualifications – future recognition decisions, recognition of qualifications of non- residents, and equal treatment for professionals who are neither frontier workers nor resident; • recognition of licences and certificates that are currently recognised EU-wide lawyers practising under home title; and • territorial scope of economic rights, in particular secondary establishment and cross-border provision of services. How will applications for settled status work? It is still unclear exactly how the process will work, and ‘user groups’ are being established to feed into the UK Government’s decisions on this. However, some principles have been agreed as follows: • The UK Government has announced that it will introduce a new ‘streamlined’ and ‘user friendly’ application scheme in 2018. • The process is to avoid ‘unnecessary administrative burdens’ and will draw on existing governmental records where possible (eg HMRC records to evidence worker status). • ‘Evidential flexibility’ will be applied regarding proof of residence over the requisite time period – it has been confirmed that this means account will not have to be made for every trip in and out of the UK. • Applicants are to be given an opportunity to remedy deficiencies in their application, rather than just being outright rejected. • The Agreement provides that the cost of an application for settled status is to be no more than the cost for nationals of that country applying for similar documentation. The UK Government has confirmed that the cost in the UK will be no more than for a passport application (currently £72.50 for an adult). • For citizens who are exchanging permanent residence for settled status, the process will be free of charge and will require submission of an identification document, a confirmation as to residence and a declaration of criminal convictions. • Citizens with indefinite leave to remain will not be impacted. They may choose to exchange their documentation to a biometric residence permit, or to wait for the settled status application system to open and do the exchange at that time. Rights of EU citizens in the UK and UK citizens in the EU after Brexit (4) Rights of EU citizens in the UK and UK citizens in the EU after Brexit 6 Is there any flexibility in the Agreement? • Countries are required to take a ‘proportionate’ approach to applications made after the deadline. • Countries will only be able to refuse a settled status application on the grounds that the residence requirement has not been met, on criminality or security grounds, or on certain other prescribed grounds (to be set out in the Withdrawal Agreement). • When determining the outcome of a settled status application, countries will not be permitted any discretion, other than in favour of the applicant. Who will have the final say over the application of the Agreement? • The Agreement will, once finalised, form the Citizens’ Rights Part of the Withdrawal Agreement entered into between the UK and the EU. • The EU Commission will monitor and oversee its implementation form the EU perspective. • An ‘independent national body’ will do the same from the UK perspective. • The CJEU will have a role in respect of both UK and EU citizens, as the UK courts will be required to take into account its case law up to the Withdrawal Date, and UK citizens will be able to request a ruling from the European Court for eight years thereafter. What concerns might businesses have with the Agreement? Although the Agreement suggests that the process for eligible EU citizens to obtain permission to remain in the UK will be as straightforward as possible, many EU citizens and their employers will be concerned about the possible administrative burden and the points of uncertainty that remain. • On its face, the Agreement provides a degree of reassurance to citizens and businesses alike. However, we will need to wait until 2018 to find out whether the reality of the processes put in place reflects the positive messages being conveyed. If this is not borne out in practice, people may be deterred from applying. • Linked to this, the UK Government has not yet indicated what ‘evidential flexibility’ will mean in practice for those needing to prove residence in the UK for the relevant period of time. This will inevitably cause concern, not least because it is understood that a number of recent applications by EU citizens for permanent residence have been turned down. • It will not be possible for EU citizens to rely on existing permission to remain in the UK. EU citizens who have already obtained permanent residence in the UK will need to convert that permission to settled status, increasing the administrative burden (and potentially the uncertainty) of the process for individuals. • There are concerns about whether the Home Office will be able to cope with the administrative burden. Even after account is taken of the extended processing time afforded by the ‘grace period’, more than 3 million applications may need to be processed. • The UK Government and EU are still yet to provide any information on the new regime that would apply to individuals moving between the UK and EU (and vice versa) after the Withdrawal Date, making workforce planning beyond Brexit very difficult for employers. Rights of EU citizens in the UK and UK citizens in the EU after Brexit (5) Rights of EU citizens in the UK and UK citizens in the EU after Brexit 7 Contacts Nicholas Squire Partner, London T +44 20 7832 7419 E nicholas.squire@freshfields.com Karin Buzanich-Sommegger Partner, Vienna T +43 699 18 910 125 E karin.sommeregger@freshfields.com If you have any queries on any of the issues raised, please contact Rights of EU citizens in the UK and UK citizens in the EU after Brexit This material is provided by the international law firm Freshfields Bruckhaus Deringer LLP (a limited liability partnership organised under the law of England and Wales) (the UK LLP) and the offices and associated entities of the UK LLP practising under the Freshfields Bruckhaus Deringer name in a number of jurisdictions, and Freshfields Bruckhaus Deringer US LLP, together referred to in the material as ‘Freshfields’. For regulatory information please refer to www.freshfields.com/support/legalnotice. The UK LLP has offices or associated entities in Austria, Bahrain, Belgium, China, England, France, Germany, Hong Kong, Italy, Japan, The Netherlands, Russia, Singapore, Spain, the United Arab Emirates and Vietnam. Freshfields Bruckhaus Deringer US LLP has offices in New York City and Washington DC. This material is for general information only and is not intended to provide legal advice. © Freshfields Bruckhaus Deringer LLP, December 2017, DS2324 freshfields.com