The UK Government published their negotiation position on the rights of EU nationals in the UK today. The policy paper can be found here.
The EU Commission outlined their position on 24 May 2017. The Working Paper is available here.
The EU Commission would allow EU citizens in the UK on Brexit day to continue to enjoy the right to acquire permanent residence after a continuous period of 5 years' legal residence, even after Brexit day. This right would be retained for the duration of the EU citizen’s life. In practice, this would mean that EU citizens in the UK on Brexit day could leave the UK without jeopardising their ability to acquire permanent residence at a later date. They could return at any point, even years after Brexit, and acquire permanent residence after accumulating 5 years’ continuous legal residence. The requirements for acquiring permanent residence would remain the same as they are now (see here and here for previous posts outlining the requirements).
In contrast, the UK would bring an end to EU free movement law (including the right to acquire permanent residence) on Brexit day. In its place, they will introduce a “grace period” during which EU citizens will need to apply for settled status under UK law. The status would be indefinite leave to remain under the Immigration Act 1971 rather than permanent residence under EU law: “Free movement rights will come to an end and therefore cannot be carried forward, as an EU legal right, into the post-exit UK legal regime” (para 14, policy paper).
To qualify for settled status, the EU citizen must have been resident in the UK before a specified date and must have completed a period of 5 years’ continuous residence in the UK. It is currently unclear whether the person must also have been “exercising treaty rights” (i.e. working, studying or self sufficient) during this 5 year period. Only the “essential conditions” are outlined in the UK Government’s policy paper: the full eligibility criteria will be set out in UK law at a later date (para 21, policy paper).
A major concession, which will cause a great deal of relief to many, is that under this new scheme the Home Office will “no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident” (para 22, policy paper). This requirement has been causing a lot of problems for students and self sufficient people applying for permanent residence documentation.
The specified date will be the date Article 50 was triggered at the earliest (March 2017) and Brexit day at the latest (March 2019). The grace period will last for at least 2 years after Brexit day, which will give EU citizens until March 2021 to apply for settled status.
Those who have not yet accrued 5 years’ residence by the end of the grace period will be able to apply for temporary status so that they can remain in the UK and apply for settled status once they have reached 5 years.
Under the UK’s proposal, obtaining documentation will be compulsory: “All EU citizens (and their families) in the UK, regardless of when they arrived, will, on the UK’s exit, need to obtain an immigration status in UK law. They will need to apply to the Home Office for permission to stay, which will be evidenced through a residence document. This will be a legal requirement” (para 17, policy paper). Failure to apply for documentation by the end of the grace period will mean the EU citizen has no legal basis to remain in the UK (para 26, policy paper).
Anyone who has already been granted a document certifying permanent residence under the current system will need to apply again for “settled status” under the new system, unless they have subsequent become a British citizen. However, the application process will be “as streamlined as possible for those who already hold such documents” (para 37, policy paper).
The UK position is concerned with the process and practicalities of granting the millions of EU citizens in the UK indefinite leave to remain under the UK’s domestic immigration system whilst the EU’s position is concerned with maintaining the status quo for all EU citizens currently in the UK.
Enforcement of rights
Under the EU’s proposal the mechanism for enforcing the rights of EU citizens in the UK would be through a monitoring function carried out by the EU Commission and ongoing jurisdiction of the Court of Justice of the European Union to settle disputes.
The UK favours enforcement by UK courts and emphatically states: “The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK" (para 58, policy paper). The UK proposal also highlights that any commitments made in the Withdrawal Agreement will “have the status of international law” (para 58, policy paper). This latter statement is essentially meaningless when it comes to individual rights as international law is not enforceable in UK courts. Even if the EU was willing to submit to jurisdiction of the International Court of Justice (which seems unlikely) this court only deals with disputes between States or between States and International Organisations, not with disputes between individuals and the State.
Under both proposals EU citizens who have not yet resided in the UK for 5 years – or who have not yet acquired permanent residence due to issues with excessive absences, gaps in employment, or lack of health insurance – will be able to remain in the UK permanently. This will remove a lot of the uncertainly which has plagued many EU citizens over the last year. The EU’s proposal allows greater flexibility as the 5 year period relied upon can be any 5 year period at any point in the future. The UK Government would require the 5 year period to conclude before March 2024 (or before March 2022 if the earlier date of Article 50 being triggered is used) and would make ongoing residence in the UK for all EU citizens subject to obtaining leave to remain under a new post-Brexit system (either settled status if 5 years' has already been accrued or temporary leave to remain if the person will not reach 5 years' residence until after the end of the grace period).
The finer details will no doubt be negotiated over the coming weeks and hopefully a final agreement will be reached soon. However the proposals of both the EU and the UK protect the position of EU citizens currently in the UK (or at least all those that were in the UK prior to March 2017), albeit to different degrees and for different periods of time. Both proposals facilitate the continued, and ultimately permanent, residence of EU citizens in the UK. After a year of uncertainly, the assurance that some form of protection will be offered post-Brexit is to be welcomed. The extend to which current free movement rights will be protected remains to be seen.