Effect of the EU and UK's proposals on citizens' rights

The UK recently announced their negotiating position on EU citizen’s residing in the UK after Brexit. We discussed the terms of the UK and EU’s proposals here.

This post will provide a few worked examples to decipher how the proposals may work in practice. The precise requirements of the UK Government’s proposed settled status are not yet known. It presumed here that there is no requirement to exercise treaty rights in the UK (i.e. work, study, or be self sufficient).

Example 1

Chris is a European national in the UK. He first came to the UK in September 2012 and studied for 4 years before beginning work in September 2016.  He did not have comprehensive health insurance. He has worked in the UK since.

EU proposal

Under the EU’s proposal, Chris would be able to acquire permanent residence after 5 continuous years’ residence in the UK in accordance with EU law. Chris has not yet acquired permanent residence and cannot apply for permanent residence documentation now as EU law requires students to have held comprehensive health insurance. As a result, his 5 years’ continuous residence will have begun in September 2016. He will continue to have the right to reside in the UK as an EU worker after Brexit and will not be legally required to apply for any documentation to prove his right. He will automatically acquire permanent residence in September 2021, after 5 years of exercising treaty rights as a worker. If the UK Government does not accept that he has been exercising treaty rights as a worker and refuse his application for permanent residence documentation, he will be able to appeal to the First-tier Tribunal. The Tribunal will apply the case law of the Court of Justice of the European Union and can refer any question of EU law to that court for clarification.

UK proposal

Under the UK’s proposal, Chris would be able to apply for settled status as soon as it becomes available (which is expected to be late 2018). He would meet the requirement of entering the UK before the specified date (which will be no earlier than March 2017) and, by the time he is able to apply for settled status, he will have lived in the UK for over 5 years. He will have until March 2021 to apply for this new settled status. He is legally required to apply for a residence document before this time. If he fails to do so, he will have no right to continue living in the UK and will be committing a criminal offence. If the UK Government does not accept that he has lived in the UK for 5 years (for instance because he exceeds the absence thresholds set out in the new UK legislation) or refuses his application for any other reason he will be able to enforce his rights in the UK courts. The court will apply only UK legislation (most likely a combination of a newly enacted Immigration Act and new provisions of the Immigration Rules) to determine the dispute. The court will not be able to take into account EU law or the case law of the Court of Justice of the European Union.

Example 2

Petra is a European national in the UK. She first came to the UK in 1995, studying initially and then working. She has worked in the UK for over 15 years. Following the EU referendum, she applied to the UK Home Office for a document certifying permanent residence to recognise that she had acquired the right to permanent residence after 5 years’ continuous working in the UK. This document was issued in December 2016.

EU proposal

Under the EU’s proposal Petra will not need to do anything. She has already acquired the right to live in the UK permanently under EU law. This right will continue to be recognised after the UK leaves the EU. It can only be lost through 2 consecutive years’ absence from the UK.

UK proposal

Under the UK’s proposal Petra’s right to permanent residence will cease when the UK leaves the EU in March 2019.  However, there will be a 2 year grace period during which she can apply for settled status under UK law. She will be legally required to apply for settled status before March 2021. Failure to do so will mean she no longer has the right to continue living in the UK and would be committing a criminal offence. Alternatively, she can apply for British citizenship prior to March 2019.

Example 3

Lucas is a European national in the UK. He first came to the UK in April 2016 and started working here. He worked for 10 months before being made redundant in February 2017. He has since been looking for work. Let’s assume he finds a new job in September 2017.   

EU proposal

Under the EU’s proposal Lucas would be able to acquire permanent residence after 5 continuous years’ residence in the UK in accordance with EU law. If he can show that he registered as a jobseeker, was continuing to look for work, and that he had a genuine chance of being engaged during February 2017 to September 2017, he will acquire permanent residence in April 2021. Alternatively, he can acquire permanent residence in September 2022 after 5 years’ continuous work at his new job. He will continue to have the right to reside in the UK as an EU worker after Brexit and will not be legally required to apply for any documentation to prove his right. If the UK Government refuses his application for permanent residence documentation, he will be able to appeal to the First-tier Tribunal. The Tribunal will apply the case law of the Court of Justice of the European Union and can refer any question of EU law to that court for clarification. This would be particularly significant in this case as arguably the UK’s position on EU jobseekers who do not find work within 6 months is inconsistent with the case law of the Court of Justice of the European Union.

UK proposal

Under the UK’s proposal Lucas will be able to apply for settled status in April 2021. He would meet the requirement of entering the UK before the specified date (which will be no earlier than March 2017) and, by April 2021, he will have lived in the UK for over 5 years. However, he will not reach the required 5 years residence before the end of the “grace period” in March 2021. He will be legally required to apply for temporary residence in the UK before March 2021 to ensure he can continue residing in the UK and then apply for settled status in April 2021. If he fails to make an application, he will have no right to continue living in the UK and would be committing a criminal offence. If the UK Government does not accept that he has lived in the UK for 5 years or refuses his application for any other reason he will be able to enforce his rights in the UK courts. The court will apply only UK legislation (most likely a combination of a newly enacted Immigration Act and new provisions of the Immigration Rules) to determine the dispute. The court will not be able to take into account EU law or the case law of the Court of Justice of the European Union.