Prime Minister Theresa May has formally outlined her proposals to allow EU citizens to remain in the UK once the country leaves the EU.
In a 15-page document entitled safeguarding the position of EU citizens living in the UK and UK nationals living in the EU, May has confirmed that qualifying EU citizens will be able to apply for “settled status” if they have lived here for five years after a “specified date” – which is yet to be confirmed.
After this date there will be a “grace period” of up to two years for those already living in the UK, after which they will be able to apply for either temporary residency or settled status.
The grace period will be put in place in order to cope with the volume of demand for permits and avoid a “cliff edge”, the Government said.
During this time, the Home Office will provide a period of blanket temporary residence permission immediately upon the UK’s exit from the EU – “a generic umbrella of temporary leave applying to all existing lawful EU residents and their families”.
The document explains: “Our priority is to reach agreement on the post-exit position of EU citizens now living in the UK and of UK nationals living in other EU countries. We will put those citizens first, and do all we can to provide reassurance to the EU citizens who have made the UK their home, and likewise for UK nationals who have done the same in countries across the EU.”
Under the proposals, EU citizens who arrived and became resident before the specified date but who do not have five years’ continuous residence at the time of the UK’s exit will be able to apply for temporary status so that they can remain in the UK until they have logged five years’ residency, at which point they can apply for “settled status”.
Those who are working towards settled status can continue to have the same workers’ rights and claim the same benefits as they do now.
One of the key tenets of the proposals is that all EU citizens and their families, regardless of when they arrived, will eventually need to obtain “immigration status” in UK law.
This means they will have to apply to the Home Office for permission to stay, evidenced through a residence document.
The Government says this is so they will be able to “demonstrate to third parties (such as employers or providers of public services) that they have permission to continue to live and work legally in the UK”.
It adds: “Without a residence document, current residents may find it difficult to access the labour market and services.”
Once this settled status is in place, however, those whose residence started before the cut-off date will have “no immigration conditions placed on their residence in the UK, providing they remain resident here”. If they then went on to be absent from the UK for more than two years, however, they could lose that settled status.
The Government has proposed to set up the application process via separate UK legislation in order to provide legal guarantees for EU citizens once the European Court of Justice ceases to have jurisdiction over the UK.
The specified date is likely to be between 29 March 2017, when Article 50 was triggered, and the formal date of Brexit, expected to be in 2019.
The proposals do not impact the Common Travel Area arrangements between the UK and Ireland, which means that Irish citizens in the UK will not have to apply for protected status.
The Government has also proposed that citizens with professional qualifications obtained in one of the EU27 countries before the UK leaves will continue to have those qualifications recognised once Brexit is formalised.
EU nationals who already have residency cards will have to apply again under the new system. The Government plans to set up the application process before the UK leaves the EU so that those who will be affected can obtain their new status “at their earliest convenience”.
May hopes to negotiate reciprocal rights for UK workers living and working in the EU.
The Government proposal says: “Firstly, UK nationals in the EU must be able to attain a right equivalent to settled status in the country in which they reside. Secondly, they must be able to continue to access benefits and services across the member states akin to the way in which they do now.”
Charlie Pring, senior counsel in the employment, pensions and mobility team at law firm Taylor Wessing, said that EU officials would now conduct a forensic analysis as to whether or not the UK’s offer dilutes rights to free movement already available to EU citizens in the UK.
He said: “As well as continuing uncertainty about the ‘cut-off’ date for new EU arrivals, there will be concern over visa plans for non-British family members that arrive after the Brexit cut-off date.
“Currently non-British EU citizens are entitled to be joined in the UK by their non-EU family members – including extended family such as parents – without a financial means test and with minimal fees.
“In contrast, British citizens find that their non-EU family members have to pay much higher visa fees, pay into the NHS and meet a strict income test – that has already led to the separation of many families unable to qualify – and that it is almost impossible to arrange visas for parents or other extended family members.”
He added that there could be some dispute over the UK’s proposals to enshrine the new residency system in UK law.
“The UK’s stance is that the British courts should oversee the system rather than the European Court of Justice, but the EU27 are concerned that without ECJ oversight, future UK governments may try to water down those agreed rights.
“No doubt there will be compromises on both sides, but a middle ground may be some form of independent arbitration panel formed of judges from the UK and EU.”
Josh Hardie, CBI Deputy Director-General, said: “Business will welcome these proposals as an important first step. Protecting the rights of EU citizens here and UK citizens abroad is the right priority at the outset of the negotiations, and firms will look forward to an early resolution of this issue.
“Both sides need to provide reassurance for millions of employees, giving certainty for businesses and starting to build real momentum to the negotiations.
“Companies will also expect a low-cost, speedy and simple solution to be put in place for EU citizens to establish their right to settlement in the UK.”