Since the UK voted to leave the EU in March 2017 there has been considerable uncertainty amongst EU citizens living in the UK as to what rights they will be entitled to post-Brexit. The initial publication of the UK’s negotiating position on Brexit in June provided little clarity of these rights, and alluded to a new ‘settled status’ which will be available to those qualifying EU citizens in the UK after ‘Brexit day,’ 29 March 2019.
Put briefly, the paper outlined a new status, similar to that of Indefinite Leave to Remain (ILR), which would be open to those EU citizens who have been resident in the UK before a specified date, and have completed a period of 5 years’ continuous residence in the UK. The scope of the new status was vague, and there was little detail provided on how the application process would work, lending little reassurance to those EU citizens living in the UK.
The government has now published further details in a ‘technical note’ setting out how EU citizens will apply for this new status, and under what criteria they will be eligible to do so. It is accompanied by a government press release in which Amber Rudd explains that she ‘hope[s] this document provides some further reassurance’ that EU citizens are looking for. This article examines what clarification the government document provides for the future of these citizens, if any.
What does it say?
The ‘technical note’ starts by acknowledging that the current Home Office system which is in place for processing EU applications is not fit to carry on as it is after we leave the EU. In recognising this, they are ‘designing a streamlined, user-friendly, digital application process’ that aims to cut the lengthy waiting times that current users are experiencing when waiting for EU resident documents.
Details on how this new process will work are added to from what we already knew from the publication of the UK’s initial negotiating position. The document confirms details such as the 2-year grace period after we leave the EU in which we allow a window of time to apply for the new ‘settled status’, as well as the creation of a ‘temporary status’ for those who have not yet accrued the five years continuous residence necessary for settlement before the end of the grace period.
The cost for applying for this status ‘will not exceed the cost of a British passport’ (currently £72.50) which is not dissimilar from the current £65.00 charge to apply for permanent residence. Those who already have an EEA permanent residence document will be charged a ‘reduced fee,’ although there is no mention of exactly what reduction will be offered. Some will undoubtedly question why another fee is necessary at all. Further, whilst ‘the previous residence assessment will not be re-done’ for those with permanent residence, there will be a ‘security check and confirmation of ongoing residence.’ It is unclear what these security checks will involve, although the EU will also certainly question why they are necessary, and the ongoing residence checks may have implications for EU citizens who have left the UK for long periods of time after gaining permanent residence.
For those who do not already hold permanent residence, the criteria for decisions on 'settled status' will be ‘simple and transparent’ and adhere to the eventual Withdrawal Agreement, such that applications cannot be denied except for one of the specified grounds for refusal. Officers may not deny applications based on discretion in any other case. Whilst the eligibility criteria are much the same as that of permanent residence currently, the process will be ‘pragmatic.’ Officers will no longer question every trip outside the UK and, in breaking Home Office precedent, will no longer seek to verify that students and ‘self sufficient’ workers have maintained the controversial Comprehensive Sickness Insurance (CSI). Applicants will also only be asked for a photograph, and not other biometric information such as fingerprints.
In what is a welcome move for some, EU citizens will be given a statutory right of appeal in line with their current rights through the Free Movement Directive, if their application is unsuccessful. However, those who welcome the independent right of appeal will also be weary of the current lengthy waiting times for EEA appeals, and question whether a smooth administrative implementation by the British government is possible in this respect. Further, ‘criminality checks’ will be carried out but any offences committed before Brexit will be treated in the same way that EU law allows today. Any offences committed post-Brexit will lead to deportation under the stricter rules that currently apply to non-EEA citizens.
The proposals should provide some reassurance for EU citizens in that the government has recognised the need for change in the processing of applications. The process of applying for 'settled status' will be mostly administrative, based on a ‘pragmatic’ approach which no longer requires the controversial CSI. Additionally, there is further light cast on how the simplified process will look for those who already have permanent residence.
However, there are certain elements of the process which are still unlikely to be accepted by the EU, and it remains to be seen whether the respective parties can agree on the specifics of the deal. The3million, a non-profit organisation which represents the rights of the ‘3 million’ EU citizens residing in the UK, suggest that the proposals do not go far enough for those citizens. They conducted a poll amongst EU citizens in the UK which revealed that a shocking 96% of respondents said they did not agree with the new proposals. Those who disagree draw attention to the previous administrative failings in implementing new proposals, such as the Universal Credit scheme, and question why those who have already acquired permanent residence will be required to reapply to get a reduced status. They also suggest that there are no guarantees that these proposals won’t be subject to change without international treaty and ECJ protection.
Uncertainty clearly still remains. The great administrative burden that the process will entail also lends reason to question whether the Home Office will be able to cope with the volume of applications for settlement under this route. Our immigration solicitors often consult with individuals and families facing the same uncertainty. If you would like further advice on issues regarding the rights of EU citizens in the face of Brexit, please contact us for further assistance.