The UK is due to leave the European Union on 29 March 2019.
The UK and the EU have reached an agreement in principle on the rights of EU citizens living in the UK and of British citizens living in the EU. The latest full version of the draft agreement was published on 19 March 2018.
The agreement is still under negotiation. It needs to be finalised by October 2018 so that it can be ratified by all EU member states in time for March 2019.
Until the withdrawal agreement has been finalised we don’t know for sure what will happen. In the meantime EU citizens who have made the UK their home want to know what they should be doing.
Have I lost my right to live in the UK?
No. The outcome of the referendum and the triggering of Article 50 have not changed the free movement rights of EU citizens. Until the UK leaves the EU on 29 March 2019, EU citizens are allowed to live and work in the UK in exactly the same way as before.
Will I be able to stay in the UK after 29 March 2019?
Yes, according to the public statements made by the UK and the EU.
The British and EU negotiating teams have agreed that there will be a transition period until 31 December 2020 during which EU law will continue to apply in the UK. EU citizens will be free to live and work in the UK during the transition period.
EU citizens who have been living lawfully in the UK before the end of the transition period on 31 December 2020 will be able to continue living in the UK. They will have until 30 June 2021 to apply for a document confirming their status.
The British government says that EU citizens who have completed five years in the UK will be eligible to apply for a new settled status – a form of indefinite leave to remain which gives the same rights as permanent residence under EU law. EU citizens who have been in the UK for less than five years will be eligible to apply for pre-settled status, a temporary permit which can be converted into settled status after five years.
The Home Office has published a statement of intent which says that the application process will be quick and simple. You will just have to show that you are an EU citizen, that you have been living in the UK – for at least five years to qualify for settled status – and that you do not have a serious criminal record.
According to the Home Office there will be no need to show that you have been exercising a right of residence under EU law, which can sometimes be complicated. Actual residence will be enough.
The settled status scheme is due to be launched in phases starting in late 2018.
How can I confirm my right of residence in the UK now?
For the time being EU citizens living in the UK are not required to apply for an official document confirming their status. But because we don’t know for certain what will happen after Brexit it’s a good idea to apply to the Home Office for a document if you qualify for one.
If you have lived in the UK for less than five years and you are employed, self-employed, studying or self-sufficient, you and your family members can apply for a registration certificate.
If you have completed a continuous period of five years in the UK as someone who is employed, self-employed, studying or self-sufficient you can apply for a document certifying permanent residence. Absences from the UK of up to six months per year do not break this continuous period. An absence of up to 12 months is allowed for important reasons such as pregnancy or childbirth, serious illness, study or an overseas posting.
The date on which you completed the five-year period doesn't matter as long as you have not been outside the UK for a continuous period of more than two years after completing the five-year period.
These documents don’t generally give you any new rights but you can use them to show that the Home Office has recognised your right of residence under European law.
Unfortunately, not everyone qualifies for these documents – especially students and self-sufficient people who don’t have private health insurance. (Employees and self-employed people don’t need private health insurance to get a document.) If you don’t qualify you will need to wait for the new settled status scheme to be launched..
How do I apply?
Start by working out which five-year qualifying period you will rely on. It doesn’t have to be the last five years. If you ever have had a period of five years’ continuous employment it’s usually best to rely on this because it’s the most straightforward option. You will need to show that you completed the five-year period at least one year ago if you want to go on to apply for British citizenship (see below).
Read the Home Office guidance to find out what documents you will need to provide.
The application process is much simpler than it used to be. In most cases it’s possible to fill in an online application form which is much easier to use than the infamous 85-page paper form. It’s no longer necessary to provide a detailed travel history. The number of supporting documents required has been cut down.
When you submit the online form you have to pay the fee of £65 per person. Then you need to print out the form and send it to the Home Office with your supporting documents. You have to enclose your passport or identity card unless you use a local authority European passport return service.
The processing time is up to six months but it is usually quicker than this.
Should I become a British citizen?
If you want to completely ensure that you are able to stay in the UK after Brexit, you can apply to become a British citizen after you have held permanent residence for one year.
You have to get a document certifying permanent residence before applying for British citizenship, but you don’t necessarily have to wait a year after getting the document.
If you’re thinking of applying for British citizenship, you should provide evidence that you completed the five-year qualifying period at least one year ago when you apply for permanent residence. If you do that, the Home Office will backdate the date when it deems you to have acquired permanent residence, which will mean that you can potentially apply for British citizenship as soon as you have your document certifying permanent residence.
Before applying, check whether your country of origin permits dual nationality and whether it will impact on your tax position.
What about my children?
If you have children born in the UK, they may already be British citizens.
Children born in the UK on or after 30 April 2006 are automatically British if at least one of their parents completed the five-year qualifying period for permanent residence before they were born.
If you completed the five-year period after your children were born you can apply to register them as British.
There are different rules for children born before 30 April 2006, and different rules again for children born before 2 October 2000.
Should I wait and see what happens?
The British government has said that it plans to introduce the new settled status scheme towards the end of 2018. At first it will be a voluntary system. For the time being you don’t have to do anything.
If you qualify for a Home Office document under the current system you should consider applying for one now instead of waiting for the proposed new system.
One reason for doing this is that if you want to apply for British citizenship you first have to obtain a permanent residence document under the current system.
It is also possible that the UK and the EU won’t reach an agreement, in which case the UK might backtrack on the announcements it has made and do something completely different. If that happens, having a document issued by the Home Office is likely to make your life easier after Brexit.
A permanent residence document costs £65. You will be able to swap it for settled status for free.
If you would like to apply for a Home Office document but you think you don’t qualify for one you should take advice, because you may have other options.
FURTHER INFORMATION ON THE RIGHTS OF EU CITIZENS LIVING IN THE UK AND OF BRITISH CITIZENS LIVING IN THE EU
To find out more about your right of residence in the UK, please contact a member of our immigration team.