Immigration Update - Brexit - UK government concedes on EU migrants' residency rights during Brexit transition

15 March 2018

The UK and the EU are currently negotiating the terms of an implementation period to commence after our withdrawal from the EU. The government has published a proposed policy statement on 28 February 2018 on the status of EU citizens arriving in the UK post 29 March 2019, during the implementation period or ‘transition’ period as it has sometimes been called. This new policy statement is a significant change to previously published statements on the status of EU nationals arriving after 29 March 2019.

The key provisions are as follows:

  • EU nationals and their family members arriving in the UK after 29 March 2019, but before the end of the transition period (which is proposed by the EU to be 31 December 2020), must apply for a residence document if they intend to remain after 3 months’ residence in the UK
  • They can apply for a residence document for up to 5 years and thereafter apply for indefinite leave to remain (ILR). This is not the same as the “settled status” for which EU nationals already living in the UK on 29 March 2019 will be eligible for after 5 years’ residence
  • Long-term family reunion rules for this cohort of EU nationals will not be so generous as the rules applicable for EU nationals arriving prior to 29 March 2019; once the transition period ends, non-EEA family members will need to apply for entry to   the UK, and later ILR, under the more restrictive UK immigration rules applicable to British nationals being joined by third country family members
  • For those EU citizens frontier working in the UK during the transition period, they will have the opportunity to obtain permission to continue this after the period ends
  • These rights will be enforceable in the UK legal system
  • The application process for a residence document will be streamlined and user-friendly. It will be possible to apply at any point up to three months beyond the end of the transition period

Although this policy statement provides more certainty for EU nationals than was previously the case, there are still a number of unknowns. For example whether EU nationals arriving during the transition period will need to do more than simply accrue 5 years’ residence to qualify for ILR. The UK government has said that it will waive the requirement for non-working EU nationals living in the UK on or before 29 March 2019 to have comprehensive sickness insurance in order to qualify for settled status. It may not be so generous towards EU nationals arriving after 29 March 2019.

This statement represents the latest counter offer from the UK during the on-going negotiations regarding the withdrawal agreement between the UK and the 27 members of the EU but was immediately rejected by the European Parliament on 1 March 2018. We will therefore have to watch this space to see if the UK government can be persuaded to provide equal treatment to EU citizens arriving both prior to and during the transition period, as is being demanded by the EU27.

Please click here for a link to the policy statement.

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