On 8 December 2017, the UK Government and the European Commission agreed a Joint Report on the status of Brexit negotiations. The rights of EU citizens in the UK was among the main points addressed. We believe that the points agreed reflect the UK Government's acceptance of many if not all of the European Commission's demands. Some key details are summarised below.
What are EU citizens' rights under the new agreement?
EU citizens must be lawfully residing in the UK on the date of the UK's withdrawal from the EU, presently scheduled to be 29 March 2019. This date could be extended by the agreement of all parties.
The rights of EU citizens' non EU family members applying after the UK's withdrawal from the EU (but not extended family members other than those in durable partnerships) will be guaranteed provided the relationship subsisted on the date of the UK's withdrawal as well as at the time of application. Exceptions will include children born / adopted overseas after the UK's withdrawal to EU citizens in the UK.
Will eligible EU Nationals be required to apply for Settled Status?
Yes, the acquisition of Settled Status will be a condition for continued lawful residence in the UK.
Will EU citizens holding Permanent Residence status (PR) be required to apply for Settled Status?
Yes. Holders of PR in the UK will be required to "exchange" that status for Settled Status. This will need to be completed within the two year implementation period, presently March 2019 – March 2021. An application to exchange status will not be a substantive application rather it will be free of charge, merely requiring the holder to declare any criminal convictions and show that they continue to reside in the UK.
Under the Joint Report, EU citizens holding Settled Status will lose this after five consecutive years' absence from the UK. This is more favourable than the two consecutive years presently applicable under the European Regulations.
Will eligible non EU National family members presently in the UK holding EU Residence cards be subject to mandatory registration post Brexit?
Yes. Again, the likelihood is that those already holding EU residence cards will be subject to a "light touch" process.
Will EU Nationals in the UK enjoy continued protection from the European Court of Justice (ECJ)?
To a significant degree yes. The ability of UK Courts to request the ECJ for its interpretation of relevant legislation is envisaged to be limited to eight years. However, this should ensure that the ECJ will be able to rule on the most significant issues affecting EU citizens in the UK. Even after this eight year period, the UK Courts will be bound to take into account the ECJ's jurisprudence.
Should EU citizens apply to formalise their status in the UK at this stage?
Yes we advise they do so for the following reasons:
- The agreement on EU citizens' rights is not "stand alone". Without a comprehensive deal on Brexit, this understanding will fall away leaving EU Citizens in the UK with a very uncertain future.
- Holders of PR will be able to "exchange" this status for Settled Status at no charge and with little or no administration or bureaucracy. Not so for non holders of PR.
- Holders of PR are able to apply for UK citizenship twelve months from the date of "deemed acquisition" of PR. Practically speaking, many PR holders will become British prior to the UK's withdrawal from the EU. If so, there will obviously be no requirement to apply for Settled Status.
- Eligible EU Nationals not holding PR will be able to apply for Settled Status within two years of the UK's withdrawal. However there is likely to be a floodgate of applications involving what will be a new application process/ framework. Those holding PR status will be subject to a simpler process.
- Formalising status now in the UK provides EU citizens and their UK employers much needed peace of mind in an uncertain environment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
