Since the result of the EU referendum was announced on 24 June 2016, one of the biggest concerns for EU citizens currently living in the UK, and businesses who employ them, is what their status will be post-Brexit.

The UK Government has consistently stated that it wishes to safeguard the rights of those EU citizens who are currently in the UK and wish to remain after the UK’s withdrawal from the EU. However, this has always been subject to the UK being able to negotiate similar safeguards for British citizens living in the EU.

The economic reasons for granting EU citizens who are currently in the UK the right to remain post-Brexit are almost beyond debate. There are currently almost 3.5m EU citizens in the UK; around 2.4m of them in work. If these workers were suddenly required to leave the UK, the effect on the UK economy would be cataclysmic.

On 29 March 2018, the UK and the EU appeared to have reached an agreement on the rights of EU citizens post-Brexit, which is set out below. This will hopefully provide certainty about the future of EU citizens and their family members in the UK.

EU citizens’ rights post-Brexit

In summary, the following agreement was reached for EU citizens and their family members who wish to remain in the UK post-Brexit:

  • EU citizens who arrive in the UK by the end of the transition period on 31 December 2020, and have been continuously and lawfully living in the UK for five continuous years or more, will be able to apply for settled status which will enable them to reside in the UK indefinitely. This means that they will be free to reside in the UK, able to access public funds and services and eventually apply for British citizenship. The UK Government has stated that EU citizens will have until 30 June 2021 to apply for this status.
  • EU citizens who arrive in the UK by 29 March 2019 but will not have completed the five-year qualifying period for settled status by the time the UK departs the EU, will be able to apply for a temporary residence permit which will enable them to remain in the UK until they have reached the five-year threshold for applying for settled status. Again, they will have until 30 June 2021 to apply for these documents.
  • EU citizens who arrive in the UK during the transition period and wish to remain in the UK for longer than three months will have to register their presence in the UK. If they wish to remain in the UK beyond the end of the transition period, they will have to apply for a temporary residence permit, which will also permit them to complete the five-year qualifying period for settled status.
  • EU citizens arriving in the UK after the end of the transition period will be subject to UK immigration law and will have to qualify for entry under the UK immigration system, which will be implemented post-Brexit. The UK Government is due to publish its proposals for this system shortly.
  • Family members who are living with, or join EU citizens in the UK before 31 December 2020 will also be able to apply for settled status, usually after five years in the UK.
  • Close family members (defined as spouses, civil partners and unmarried partners, dependent children and grandchildren) will be able to join EU citizens after the UK leaves the EU, where the relationship existed on 31 December 2020.

EU citizens with settled status and temporary residence permits will continue to have the same access as they currently do to healthcare, pensions and other benefits.

The UK has stated that it expects to extend this offer to resident citizens of Norway, Iceland and Liechtenstein (which are part of the EEA) and Switzerland (which is not part of the EU or the EEA).

Furthermore, as the rights of British and Irish citizens are enshrined in the Ireland Act 1949, Irish citizens are not required to apply for settled status, temporary residence permits or register. Irish citizens’ rights are not affected by Brexit.

Temporary residence permits / settled status

The UK Government is likely to start accepting applications for settled status and temporary residence permits toward the end of 2018. It is aiming to develop a straightforward, online application system. The Immigration Minister has stated that the application form will have a maximum of eight questions, the cost of the application will be up to £75 and a decision should be made within two weeks. In order to facilitate the process, the Home Office will work with other government departments, such as HMRC, to verify the identity of applicants and to obtain existing government data. This should minimise the amount of documents the applicants will be required to submit.

Furthermore, the criteria for qualifying for settled status will effectively be the same as for obtaining permanent residence under EU law. These are that the EU national must have been continuously resident in the UK exercising EU Treaty Rights, such as employment, self-employment, study, self-sufficiency or as a job seeker, for five continuous years. However, the UK Government has stated that it will take a more pragmatic approach to dealing with settled status applications.

For example, normally EU citizens who have been studying or self-sufficient in the UK for five years, will only be deemed to hold permanent residence if they have held comprehensive sickness insurance for the periods in which they have been exercising those rights. The UK Government has stated that it will not require applicants to provide evidence of comprehensive sickness insurance for settled status applications. It has also said that, for those who are in employment or self-employment, it will not apply the requirement that the work must be genuine and effective and not marginal or supplementary. In other words, the Home Office will not be assessing the EU national’s level of employment / self-employment activity and remuneration in order to determine whether they are exercising one of these treaty rights.

This approach is to be welcomed as there are many EU citizens who have been in the UK for over five years and are not deemed to hold permanent residence in the UK because they do not meet the above requirements, even though they have never sought assistance from the UK Government.

Document Certifying Permanent Residence (DCPR)

Under EU law, EU citizens who are deemed to hold permanent residence may apply for a DCPR in order to evidence this status, although this is not mandatory. The UK Government has stated that these documents will cease to be valid when the UK leaves the EU.

However, the UK Government has confirmed that those who hold a DCPR will be able to use a simplified procedure to exchange this for the new settled status document, free of charge.

Processing of applications

The UK Government is very aware of the logistical challenges it faces in issuing temporary resident permits and settled status documents to over 3m EU citizens who are currently in the UK. As well as developing a new online system, the UK Government is looking to more than triple the number of Home Office personnel to process these applications.

Conclusion

This agreement provides certainty to EU citizens looking to come to the UK by the end of the transition period and has given them much more time to plan their relocation.

However, it is surprising that the UK government has been willing to give ground on one of its major negotiating positions, namely that EU citizens would be subject to UK immigration law once the UK leaves the EU on 29 March 2019. It is clear that the UK Government has felt that it had to cede on this issue in order to be able to secure more favourable terms in other areas.

In addition, this agreement effectively extends the transition period, at least in regards to EU citizens’ rights, to 30 June 2021, as it will only be mandatory for EU citizens to hold settled status or temporary residence permits after this date.