The Government’s “offer” to EEA nationals on Brexit is not much of an offer. There is still uncertainty and lack of information as to what will happen on Brexit - which is unsettling for EEA workers.
The Government proposal involves applicants applying for a form of immigration status, the majority of which are already entitled to. The plan is that EU nationals on Brexit will apply for “settled” status and will involve an application to the UK immigration authorities at the Home Office. If approved, the applicant will receive an immigration biometric residence document (currently given to non-EU migrants) which confirms their settled status.
This offer does little to reassure EEA nationals and their families in the UK. Firstly, the application process in terms of criteria, documentation, procedure and timing is unclear. Secondly, it is contradictory to require those already permanently resident in the UK to apply for settled status. Thirdly, with Brexit looming on 29 March 2019 we seem no nearer to agreeing on a new immigration system for EEA nationals and what we end up with could be very different to what is currently proposed.
The good news is that there is some certainty and protection for EEA nationals. Any EEA national who has exercised Treaty rights as a ‘qualified person’ (through working, self-employment, study or self-sufficiency) can acquire permanent residence in the UK after 5 years’ continuous residence.
As a permanent resident they are not subject to immigration control and can continue to live and work in the UK. Having proof of permanent residence protects and strengthens the EEA worker’s position on Brexit.
There is a question over the legality of making EEA nationals with proof of their permanent residence apply for settlement (effectively the same status) on Brexit. Even if the Government insists on a further settlement application on Brexit, it will still be better to do so having already obtained proof of their permanent residency because the settlement application on Brexit will be easier and more a formality (as the detailed assessment will have been made when they applied for permanent residency).
Further, anyone applying for British citizenship before Brexit will need to have proof of their permanent residence.
If an applicant has not reached the 5 years continuous residence yet, they can apply for an EEA Registration Certificate as this will help prove when they first came to the UK and that this is therefore before Brexit or any cut-off date to transitional arrangements. In light of the above, the Immigration team at Charles Russell Speechlys LLP are advising EEA nationals who are eligible to apply for permanent residence to do so now before Brexit takes place. Those not eligible for permanent residence should apply for the Registration Certificate.