Post-Brexit Immigration Law Explained in 4 Simple Points

Alan Kennedy, Associate at national law firm Bond Dickinson, explains for Lawyer Monthly the intricacies of the UK Government’s plans set for post-Brexit rights and they mean for the 3 million EU citizens living in the UK.

Speaking in the House of Commons on 26^th June, Theresa May announced the Government's proposals outlining how it intends to protect the rights of EU citizens living in the UK. The announcement has been long awaited, particularly given the uncertainty around the status of EU citizens following Brexit. The Prime Minister also provided some reassurance to the 1.2 million British expats currently living in the EU and made it clear that the offer was not unilateral and must be part of a "reciprocal agreement".

The Home Office has published a 15-page policy paper entitled "Safeguarding the position of EU citizens in the UK and UK nationals living in the EU", which provides a detailed summary of the Government's proposals. In summary, the paper confirms the creation of a new "settled status" for EU citizens who arrive before a "cut-off date" and will require all EU citizens (and their families) to apply for a new "residence" document. The cut-off date is yet to be decided and will be agreed as part of the UK's negotiations with the EU. However, the Government has indicated that it will fall between 29 March 2017 and 29 March 2019, the date the UK leaves the EU.

We have set out below some of the key points from the proposals.

Key Points

1. EU citizens who have been continuously living in the UK for 5 years will be able to apply to stay indefinitely by obtaining "settled" status. This will mean that they will be free to live in the UK, have access to public funds and services and apply for British citizenship.
2. EU citizens who have arrived in the UK before a "cut-off date", but have not been living in the UK for 5 years when the UK leaves the EU, will be able to apply to stay in the UK until they have reached the 5 year threshold. They will then be able to apply for "settled" status as set out above.
3. EU citizens who arrived after the "cut-off date" will be able to apply for permission to remain in UK (after the UK leaves the EU) under the future immigration arrangements for EU citizens. The Government has not confirmed the details of those arrangements and has announced in its paper that they are currently looking at this.
4. Family dependants who are living with or have joined EU citizens before the UK leaves the EU will also be able to apply for "settled" status after 5 years in the UK. In such cases, the "cut-off date" will not apply to those individuals.

The Government has also confirmed that those EU citizens who are granted "settled" status will be treated like a comparable UK national and entitled to broadly the same rights and benefits. For example, they will continue to be entitled to use public services and receive benefits, including pensions, healthcare, education housing etc. on the same basis as British citizens.  They will also be able to apply for British citizenship.

Theresa May has also insisted that no EU national currently resident in the UK will have to leave at the point of Brexit and that there will be a "grace" period of up to 2 years. This will provide EU citizens (and their families), including those who arrive after the cut-off date, with permission to stay in the UK for a fixed period of time, which will allow them to apply for and receive their new residence documentation.  However, if an individual has not received the required documents by the end of the grace period they will no longer have permission to remain in the UK.

The Application Process

The Government has confirmed that all EU citizens in the UK (and their families) will need to apply to the Home Office for permission to stay in the UK and will be required to apply for a new residence document to demonstrate their settled status. This will also include all those individuals (around 150,000) who have already applied for and received permanent residency cards.

The Government has not confirmed exactly how the application process will work in practice. However, it has stated that it will involve an online application system which will be "as streamlined and user-friendly as possible". This is expected to go live at some point in 2018.

The Government has also made it clear that there will be no rush on people applying for their new immigration status and has assured both EU citizens living in the UK and UK businesses (who employ EU citizens) that there "is no need to do anything now". It has also stated that all qualifying EU citizens will be given adequate time to apply for their new residence status after the UK's exit and that there will be no "cliff-edge" at the point the UK leaves the EU.

The process will also involve an assessment of conduct and criminality and the proposals confirm that applications will be rejected if an individual is a "serious or persistent criminal" and who is considered "a threat to the UK". Further, the proposals also state that "settled" status can lapse, if the holder stays outside the UK for a continuous period of more than two years, unless they have strong ties in the UK.

Summary

So far the proposals have received a mixed reaction and have been criticised as being vague and inadequate.  They also appear to lack any real detail and there is a lot of information which is still yet to be decided, which is likely to form part of the UK's negotiations with the EU. This includes the following outstanding points:-

1. The "cut-off date" for EU nationals arriving in the UK.
2. The future immigration arrangements for EU nationals who arrive after the "cut-off date".
3. The period of time which will be used as a "grace period". It has been suggested that this will be up to 2 years but an exact period will be confirmed in due course.
4. Who will enforce the new rules. The Government has suggested that the new rules will be enforced by the UK courts and that the European Court of Justice (ECJ) will have no jurisdiction in the UK. However, this is likely to be a key area of dispute as the EU’s position is that the ECJ should be the arbiter of any future disputes over citizens’ rights.

Whilst the proposals provide some clarity on how the Government intends to protect the status of both EU citizens in the UK and UK nationals living in the EU, there is still much to be decided and there are a number of questions which remain unanswered. No doubt the proposals will receive further criticism over the coming weeks and Donald Tusk, President of the European Council, has already stated that the Government's offer was “below expectations” and would worsen the rights of EU citizens.