Brexit note - EU citizens’ rights post-Brexit

Since the result of the EU referendum was announced on 24 June 2016, one of the biggest concerns for EU citizens currently living in the UK, and businesses who employ them, is what their status will be post-Brexit.

The UK Government has consistently stated that it wishes to safeguard the rights of EU citizens who are currently in the UK and wish to remain after the UK’s withdrawal from the EU. However, this has always been subject to the UK being able to negotiate similar safeguards for British citizens living in the EU. 

The economic reasons for granting EU citizens who are currently in the UK the right to remain post-Brexit are almost beyond debate. There are currently almost 3.5m EU citizens in the UK with around 2.4m of them in work. If all these workers were suddenly required to leave the UK, the effect on the UK economy would be cataclysmic.

On 8 December 2017, the UK and the EU appeared to have reached an agreement on the rights of EU citizens post-Brexit, which is set out below.

EU citizens’ rights post-Brexit

In summary, the following agreement was reached for EU citizens and their family members who wish to remain in the UK post-Brexit:

  • Those who arrive in the UK by 29 March 2019 and have been continuously and lawfully living in the UK for five continuous years or more will be able to apply for "settled status", which will enable them to reside in the UK indefinitely. This means that they will be free to reside in the UK, able to access public funds and services and eventually apply for British citizenship.
  • People who arrive in the UK by 29 March 2019 but who will not have completed the five year qualifying period for settled status by the time the UK departs the EU, will be able to apply for a temporary residence permit which will enable them to remain in the UK until they have reached the five year threshold for applying for settled status.
  • Family members who are living with, or join, EU citizens in the UK before 29 March 2019 will also be able to apply for settled status after five years in the UK.
  • After 29 March 2019, close family members (defined as spouses, civil partners and unmarried partners, dependent children and grandchildren and dependent parents and grandparents) will be able to join EU citizens who arrive in the UK before 29 March 2019, provided the relationship existed on 29 March 2019 and continues to exist when they wish to come to the UK.

EU citizens with settled status and temporary residence permits will continue to have the same access as they currently do to healthcare, pensions and other benefits. Those with a temporary residence permit will effectively be able to continue to exercise EU free movement rights in the UK post-Brexit provided they continue to hold that document.

The UK has stated that it expects also to extend this offer to resident citizens of Norway, Iceland and Lichtenstein (which are part of the EEA) and Switzerland (which is not part of the EU or the EEA).

Temporary residence permits / settled status

The UK intends for there to be a transition period after the UK formally leaves the EU, during which EU citizens and their family members can apply for temporary residence permits or settled status. The length of this transition period is yet to be formally agreed with the EU but the UK is currently stating that it will end in December 2020.

The UK Government is likely to start accepting applications for settled status and temporary residence permits toward the end of 2018. It is aiming to develop a straightforward, online application system.

The Immigration Minister has stated that the application form will have a maximum of eight questions, the cost of the application will be up to £75 and a decision should be made within two weeks. In order to facilitate the process, the Home Office will work with other government departments, such as HMRC, to verify the identity of applicants and to obtain existing government data. This should minimise the number of documents the applicants will be required to submit.

Furthermore, the criteria for qualifying for settled status will effectively be the same as for obtaining permanent residence under EU law, which are that the EU national must have been continuously resident in the UK exercising EU Treaty Rights, such as employment, self-employment, study, self-sufficiency or as a job seeker, for five continuous years. However, the UK Government has stated that it will take a more pragmatic approach to dealing with applications. For example, normally EU citizens who have been studying or self-sufficient in the UK for five years will only be deemed to hold permanent residence if they have held comprehensive sickness insurance for the periods in which they have been exercising those rights. The UK Government has stated that this requirement will not apply to settled status applications. It has also said that for those who are in employment or self-employment, it will not apply the requirement that the work must be genuine and effective and not marginal or supplementary. In other words, the Home Office will not be assessing the EU national’s level of employment / self-employment activity and remuneration in order to determine whether they are exercising one of these treaty rights.

This approach is to be welcomed as there are many EU citizens who have been in the UK for over five years and do not meet these requirements, who therefore are not deemed to hold permanent residence in the UK, even though they have never sought assistance from the UK Government.

Documents Certifying Permanent Residence

Under EU law, EU citizens who are deemed to hold permanent residence may apply for a Document Certifying Permanent Residence (DCPR) in order to evidence this status, although this is not mandatory. The UK Government has stated that these documents will cease to be valid when the UK leaves the EU.

Processing of applications

The UK Government is very aware of the logistical challenges it faces in issuing temporary residence permits and settled status documents to over 3m EU citizens who are currently in the UK by the end of the transition period. As well as developing a new online system, the UK Government is looking to more than double the number of Home Office personnel to process immigration applications.

An end to uncertainty?

Undoubtedly, after December 2017, a huge sense of relief was felt by EU citizens who wish to remain in the UK post-Brexit, (and those who employ them) that the UK and the EU have finally reached an agreement on EU citizens’ rights. However, in light of recent announcements made by the UK Government and the EU, it appears that one key issue is still under negotiation.

The UK Government had proposed in December 2017 that, during the transition period, EU citizens will technically be subject to UK immigration law, although they will automatically be granted “deemed leave” on 29 March 2019. This status will enable them to continue to live, work and study in the UK as if they are continuing to exercise free movement rights in the UK. In February 2018, the EU stated that it wants EU citizens entering the UK during the transition period to benefit from full movement rights and only to be subject to UK immigration law after the end of the transition period. As the negotiations regarding this issue appear yet to be finalised, there is ongoing uncertainty for EU citizens who may wish to enter the UK after 29 March 2019 and employers that are trying to plan their future recruitment strategy, especially if they operate in industries that traditionally employ a high number or EU citizens.

The current UK economic migration system only effectively provides routes of entry to highly skilled migrants but, given the number of EU citizens working in medium and low skilled occupations, it will be vital that the system is adapted to enable employers to recruit non-UK citizens to fill vacancies at those skill levels, as there are unlikely to be sufficient local workers to satisfy the demand.

Furthermore, there is clearly still a lot of work to be done by the UK Government in defining the criteria for obtaining a temporary residence permit and settled status and in putting in place procedures which will enable it to process the large numbers of applications involved before the end of the transition period.

Many EU citizens who have already completed five years of continuous residence in the UK may still wish to obtain a DCPR given that the UK Government has stated that it will be possible to exchange this for a settled status document using a simplified procedure. The UK Government has already streamlined the procedure and documentation required for these applications, which means that they are currently being processed in approximately a two months period. EU citizens may also keep their original passports throughout the consideration process, thereby retaining their ability to travel overseas. It is also worth noting that EU citizens must first obtain a DCPR before they may submit an application for British citizenship.

Many employers are providing assistance to their EU work force in preparing these applications and it will certainly be important for employers to encourage their EU employees to apply for temporary residence permits or settled status as soon as possible once the Home Office begins to accept these applications. This will hopefully ensure that they receive their documents substantially before the end of the transition period and avoid the inevitable last minute rush.

Consequently, although the agreement reached on 8 December represents a huge step forward in clarifying EU citizens’ rights post-Brexit, there is still a long way to go before EU citizens, and the UK businesses that employ them, know precisely on what basis EU citizens will be able to live and work in the UK in the future.