Brexit Phase 1 Agreement: EU Citizens Rights

In what has been referred to as a significant 'breakthrough' by the European Commission president, the UK and the EU have now finalised the first stage of Brexit negotiations. On 08 December 2017 the parties reached an agreement on the three key issues at the core of Brexit, one of which is the rights to be afforded to EU citizens in the UK after Brexit.

Having reached an agreement ‘in principle’ the European Council signed off on the deal last Friday, allowing it to form the basis of a Withdrawal Agreement between the parties, binding in international law once Brexit talks are concluded.  Whilst the Government published extensive guidance and a joint report covering all aspects of the deal, this article will summarise the content of the agreement merely in relation to the status of EU citizens in the UK.

As we have discussed previously, in order to remain in the UK after Brexit, EU citizens must apply for the new ‘settled status.’ The agreement establishes the requirements and scope of the status and, in summary, provides the following:

  • EU citizens who, by 29 March 2019, have been continuously and lawfully living here for 5 years will be able to apply to stay indefinitely by getting settled status.
  • EU Citizens who arrive by 29 March 2019, but won’t have been living here lawfully for 5 years when we leave the EU, will be able to apply to stay until they have reached the 5-year threshold. They may given ‘temporary status’ and they can then apply for settled status.
  • Family members who are living with, or join, EU citizens in the UK by 29 March 2019 will also be able to apply for settled status, usually after 5 years in the UK.
  • Close family members (spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) will be able to join EU citizens after exit, where the relationship existed on 29 March 2019.
  • This settled status is not automatically conferred, and all EU nationals will have to apply to acquire it. EU citizens who do not apply for the status before the end of the transition period will be subject to removal.
  • EU citizens arriving after 29 March 2019 will be subject to the domestic immigration process that is in place at the time, and will not be able to enter under the previous EU free-movement provisions.

Who will qualify?

The agreement confirms the same eligibility criteria that were initially proposed by the UK government in a technical note. As such, EU citizens who are and continue to be legally resident in the UK, as a worker, self-employed person, student, or self-sufficient person will be eligible to apply for settled status. It will also no longer be necessary for students or self-sufficient persons to hold Comprehensive Sickness Insurance (CSI).

Previous underlying criticisms about the lack of clarity provided on the new settled status remain as the agreement is silent on what will happen to those EU citizens who do not meet the requirements. Those who will not be lawfully resident in the UK on 29 March 2019, or do not qualify as a worker, self employed person, student, or self-sufficient person may, therefore, be subject to removal, although the Home Office has previously suggested these persons may be afforded some form of temporary status.

The Government has provided example case studies which help to understand the position of EU nationals in various different circumstances.

What rights are afforded with this status?

EU citizens who have acquired settled status will be treated in much the same way as a British citizen, with the exception of the specific rights attached to British citizenship such as the right to vote and the ability to receive consular assistance abroad.  Those with settled status will be allowed the same access to public funds and benefits as British citizens. However, those with temporary status will have a more limited access to public funds, in the same way the EU nationals currently present in the UK do.

In terms of healthcare, the current provisions under the European Health Insurance Card scheme will remain, allowing EU citizens continued access to the NHS.

Will family members be allowed to remain?

Family members who arrived before 29 March 2019 will be eligible for settled status after five years, and those who do not hold five years residency will be afforded temporary status until they do.

However, the following family members will also qualify for settled status even if they arrive after 29 March 2019, but only if the relationship existed before that date, and there is evidence of this:

  • Spouses.
  • Civil partners.
  • Durable partners.
  • Children or grandchildren under 21.
  • Dependent children or grandchildren older than 21.

Children born after 29 March 2019 will also qualify, however, those who do not arrive before 29 March 2019, and are not one of the above noted family members, will have to apply to enter under the current domestic immigration rules for family members and dependant adults.

I’m an EU citizen, what do I need to do?

All EU citizens will have to apply for settled status: it is not automatically conferred on anyone, even those who already hold permanent residence. As such, applications for settled status will need to be submitted before the end of the transition period which begins on 29 March 2019 and is expected to run for at least 2 years. The length of the transition period is, however, still open to negotiation and the EU are trying to put a 21 limit on the temporary arrangement. Failure to submit an application will effectively render that citizen in breach of UK law, and will be staying here unlawfully.

The details of the application process have been discussed previously, but in summary:

  • The application process will cost no more than a British passport (£72.50)
  • The process is promised to be simpler, and aims to minimise the burden of documentary evidence.
  • For those who already hold permanent residence, there will be a streamlined process that does not require a demonstration of continuing exercise of treaty rights.

There will, however, be criminality and security checks, and confirmation of continued residence is necessary. Currently, the test for removing EU citizens with criminal records is a very high and stringent test, and it is difficult for the Government to remove these citizens. However, people who acquire convictions from 29 March 2019 will no longer be protected by EU law, and the assessment undertaken in the new criminal and security checks is a much lower test.

In what is a welcome move, those who already hold a permanent residence document issued under EU law will be able to convert that document into the new document free of charge. This is a change from the Government’s initial proposition of a ‘reduced fee’ for those who already hold permanent residence.

Those EU citizens who are living outside of the UK on 29 March 2019 will not be able to apply for settled status, whether they hold a permanent residence document or not. The agreement establishes that the new application process can only be undertaken from within the UK, and anyone out of the country will not have their past rights protected. This begs the question as to what will happen to those EU citizens who are outside the UK on 29 March 2019 on holiday, or visiting others. The agreement is not clear on this, and it will no doubt cause controversy in the future. As such, any EU citizen that wishes to exercise their right to apply for settled status and settle in the UK should carefully consider their future plans and travel arrangements to account for this.

It should be noted that the agreement does not currently extend to non-EU citizens from EEA countries - Norway, Iceland, Lichtenstein and Switzerland, but is expected to do so in the future.

Most will undoubtedly be relieved that phase 1 of the Brexit negotiations is finally complete, however there are still many left questioning the scope and requirements of this new status. Our immigration solicitors often consult with individuals and families facing the same questions. 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.