The offer: questions remain as to what Theresa May’s proposals mean for EU citizens living in the UK after Brexit

27 June 2017

Theresa May announced last week her political offering to European leaders in Brussels on how she will deal with EU citizens living in the UK post Brexit. Yesterday, the government produced a document:  The United Kingdom’s Exit from the European Union,  which provides more detail on the PM’s approach and offering to EU citizens. The PM has pledged that EU citizens who arrived in the UK before the triggering of Article 50 will be entitled to stay and those who arrive after the “cut off" date will be given a two year “grace period” after Brexit to obtain permission to remain in the UK or return to their home countries. The PM has not stated when the “cut off” date will be, but a sensible approach would be the actual Brexit day, 29 March 2019.

Here is a summary of the proposal:

  • All EU citizens living in the UK will be transitioned into UK domestic law post Brexit – this is not an automatic transfer so EU citizens will need to proactively apply to the Home Office to remain in one of the categories under UK Immigration Rules. This will be the UK’s replacement scheme for EU free movement law.
  • In the interim, the UK will be looking to introduce a voluntary scheme for EU citizens to apply under UK Immigration Rules for indefinite leave to remain before Brexit.
  • From 29 March 2019, a two year transitional period will apply (until 29 March 2021) where EU citizens resident in the UK will have deemed leave under the UK Immigration Rules. This is the “grace period” to allow EU citizens to regularise their UK status post Brexit. If the EU citizen does not apply for permission to stay before this two year grace period ends, the EU citizen will lose their right to stay in the UK afterwards.
  • For EU citizens who acquired permanent residence in the UK before the “cut-off” date, they will be given a new settled status. However, the “cut-off” date is yet to be clarified – it could be 29 March 2017 or 29 March 2019.  The EU citizen will still need to meet a number of requirements. It has been proposed that on application, the EU citizen will be assessed on their length of residency (usually five years) and their conduct and criminality – mainly to ensure they are not a threat to the UK.  There was no mentioning of absences but it is likely that this will be assessed as part of the application. Also, it would only be an entitlement to apply not an entitlement to indefinite leave to remain.
  • For EU citizens who are in the process of acquiring the right of permanent residence before the “cut-off date”, they will have the opportunity to continue their track to indefinite leave to remain after five years of residence in the UK where they can show they have been working or studying. However, it is unclear how far self-employed EU citizens working in the UK will be protected.
  • For EU citizens who arrive after the “cut-off” date, they will need to come under UK Immigration Rules but there is currently no undertaking on what these rules may be as they are yet to be determined.
  • Irish citizens will not be affected and can remain in the UK. However, family members of Irish citizens (who are not Irish or UK citizens) will not be able to rely on EU free movement law after Brexit and would need to apply under UK Immigration Rules as with any other EU and non-EU citizen.
  • Family members of EU citizens will be treated in line with the principal EU citizen but they too will need to meet the residence requirement of five years and also demonstrate they are in a genuine relationship with the EU national – this could be providing evidence of cohabitation. However, family members of EU nationals who arrive in the UK after the “cut-off” date will not be covered by the transitional arrangements and will need to apply under UK Immigration Rules.
  • Children born in the UK to EU citizens who hold permanent residence before the child’s birth will automatically be British. Therefore, EU citizens will need to show that they acquired permanent residence under EU free movement law before their child was born in the UK for their child to be born British.
  • However, children born overseas or children born in the UK to EU citizen parents (who do not have permanent residence) will be eligible to apply for indefinite leave to remain. This would apply regardless of when the child was born or when they arrived in the UK. For an EU citizen parent who arrived in the UK before the “cut-off” date and needs to apply for permission to stay in the UK post Brexit, they will also need to apply the same permission for their child.
  • Existing rules on the rights of EU citizens and UK nationals to export UK social welfare benefits to the EU will be protected for those who are exporting such UK social benefits on the “cut-off” date.
  • UK state pensions are currently payable to anyone eligible, wherever they reside in the world but annual increases (known as uprating) are only payable to those living in the EU due to current EU law. The UK intends to continue to export and uprate the UK state pension within the EU, provided that the EU will also do the same and this will be agreed through negotiations.
  • The UK will seek to protect healthcare arrangements with the view of ensuring EU citizens living in the UK will still be eligible to NHS funded healthcare in the UK. This is only on the basis that the EU will also provide the same for UK nationals living in the EU but there is no indication as to what these reciprocal healthcare provisions may be.
  • Confirmation that current EU citizen students enrolled on a UK course at a UK university or further education institution in the academic years of 2017/18 and 2018/19 will continue to be eligible for student support and home fee status for the duration of their course.
  • The UK will seek to ensure professional qualifications obtained prior to Brexit will continue to be mutually recognised so that these professionals can continue to practise in the UK without unfair detriment or discrimination.
  • The European courts will not have jurisdiction in  the UK – the arrangements will only be enforceable through the UK judicial system.

As you will see from the above, there are still many questions as to what Theresa May’s “fair and serious” offer means and, undoubtedly, many European nationals living in the UK will remain on tenterhooks until her propositions are formalised.

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