Status of EU nationals in the UK – Theresa May’s “fair and serious” offer still leaves most feeling uncertain

03 July 2017

On 26 June the Government released a new document which clarifies how the position of EU nationals living in the UK and UK nationals living in the EU will be safeguarded and provides more detail on the Prime Minister’s approach and offering to EU nationals. Literally minutes after the document was released, notifications flooded in from various EU nationals’ forums and Facebook groups as well as mainstream media and blogs, announcing that an update has finally arrived after a year-long silence on the issue. This really highlights how eagerly any news on the status of EU nationals in the UK was awaited. The Government’s position is set around “a cut off date” which will take place at some point between the UK triggering the Article 50 (29 March 2017) and the date on which the UK will exit the EU (predicted 29 March 2019). Anyone’s status will depend on how long they’ve been in the UK exercising the free movement rights on this particular cut-off date.

  • EU nationals who have been in the UK for more than 5 years and have acquired the permanent residence rights will be able to apply for “settled status”. The application for this will be under the UK law and will not be the same as the current applications for certificate of permanent residence under the EU law. The UK Government is promising a more streamlined application process and some of the current requirements removed (for example evidence of comprehensive sickness insurance for some categories of applicants will no longer be required).
  • Those who have not yet acquired 5 years residence will also be given the right to remain in the UK. The Government acknowledged that many EU nationals who moved to the UK before Brexit and before Article 50 was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here, and the commitment has finally been given that those EU nationals will have that expectation honoured by the UK Government. The application process will be very much the same as for those who have already acquired 5 years residence, however, only temporary status will be given first and obtaining full settled status will still only be possible after completing 5 years in the UK. This should provide some reassurance to most EU nationals who will be in the UK before the cut-off date and wish to remain here.
  • Those who will arrive in the UK after the cut-off date will be subject to the UK Immigration system and we are yet to see whether the current immigration system will be adjusted in light of Brexit or not and which categories will be utilised for skilled and unskilled immigration from the EU. The Government specified that, despite the fact that temporary right to stay in the UK may be given to those who come here after the cut-off date, this group should have no expectation of a settled status.

Until the cut-off date there are no changes to EU nationals’ rights and free movement rights can be exercised in the same way as before Article 50 was triggered. There is also currently no obligation on EU nationals to apply for any document or proof of their right to be in the UK. Despite this, since the EU referendum an estimated 150,000 EU nationals have already taken to confirming their status by applying for certificate of permanent residence. Even having obtained this, they will have to re-apply under the new UK rules to obtain a “settled status”. This can be done on a voluntarily basis before the cut-off date, or during the proposed grace period after the cut-off date. The Government indicated the process for these applications will be set up in 2018. After the grace period, it will be mandatory for all EU nationals in the UK to apply for settled status or a temporary residence permit in order to be able to remain here.

Generally speaking the Government’s plan has been well accepted, but there is a slight twist to the story. The expectation of the UK Government is that the EU will offer reciprocal treatment for UK nationals resident in its member states. This includes benefits, pensions, healthcare, economic and other rights, for example, continued access to NHS for EU nationals in the UK will be given but only if EU countries provide the same for UK nationals living there. If this reciprocal treatment cannot be agreed by all EU member countries, then we might be back to square one, so one can argue how much certainty, if any at all, does Theresa May’s announcement actually give EU nationals.

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