Phase 1 citizens' rights alert

8 December 2017

The UK Government and the EU have agreed on the first phase of negotiations as part of the on-going process to withdraw the UK from the EU.

An agreement on the rights of EU citizens was a prerequisite to finalise this first stage of negotiations. After months of disagreement on this issue, the UK and the EU have finally agreed on the key principles of the post-Brexit position for EU citizens and their family members resident in the UK. The details still need to be filled in and key information about the process EU citizens will have to follow will still need to be announced but we have the basic framework.

The highlights of the agreement are as follows –

  • The agreement will apply to all EU citizens resident in the UK before the specified date. It has now been agreed the specified date will be the date of withdrawal from the EU. Under the Article 50 process which has been triggered, we expect the date of withdrawal to be 29 March 2019.
  • EU citizens will be given at least two years after the withdrawal date to apply for a new status in the UK. For those who have been in the UK for five years at the date of withdrawal, they will be able to apply for ‘settled status’ which will be equivalent to permanent residence or indefinite leave to remain. For those who have spent less than five years in the UK at that time, they will need to apply for a temporary status until they reach the five year point when they will become eligible for settled status.
  • Eligibility for temporary status for those with less than five years residence, appears to be dependent on the EU citizen being in the UK in accordance with EU law. That means they should either be in their first three months of residence in the UK or they will need to be exercising treaty rights.
  • Though the exact requirements for settled status have not yet been set out, it appears they will be largely in line with the requirements for permanent residence which requires the applicant to have exercised treaty rights in the UK during the relevant five year period. It is open to the UK to offer more favourable terms in they wish. 
  • The more generous EU law provisions on the impact of criminality and conduct will be applied with regard to any conduct which predates the withdrawal date. National law will apply to the treatment of criminality and conduct which occurs after the withdrawal date.
  • Although they will still need to make an application for settled status, those who have already obtained confirmation of permanent residence and hold a document showing this, will be able to convert it into a settled status document for free. This will be subject to verification of identity, criminality and security checks and confirmation of on-going residence. This requires further clarification as it suggests that only those who are still resident in the UK will be eligible for settled status. There will be EU citizens who have left the UK but have retained permanent residence and their position needs to be clarified.
  • Settled status can be lost after an absence from the UK for a period exceeding five years. This is more generous than the current position whereby permanent residence is lost after a two year absence from the UK.
  • EU citizens resident in the UK before the withdrawal date will be able to rely on EU law to bring family members to the UK after withdrawal, as long as the their relationship with that family member existed before the date of withdrawal. If the relationship (eg. A marriage) post-dates the withdrawal date, national law will apply so they will likely need to meet the more restrictive requirements of the Immigration Rules.
  • UK courts will have due regard to decisions of the Court of Justice of the European Union (CJEU) after the specified date and there will be a mechanism for the UK courts to ask the CJEU questions of interpretation for up to eight years after the agreement on citizens’ rights comes into effect.

Although we still don’t know everything, it is likely that these provisions will form the framework of the position of EU citizens in the UK after withdrawal from the EU.

We advise EU citizens in the UK to seek advice on their position if they have not already done so. They may have a number of options before the UK withdrawal from the EU is complete which will provide greater peace of mind going forward. 

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