On 7th November 2017, the Government published a Technical Note in a bid to clarify certain aspects of its proposal for EU citizens' rights post Brexit. However, uncertainties remain.
What is the legal status of the Government's Technical Note?
As the Government acknowledges, the document has been sent to the EU "as part of negotiations". It is not the agreed future road map.
Will eligible EU nationals be required to apply for Settled Status?
The UK's proposal is that acquiring Settled Status will be a condition for lawful residence in the UK.
Should EU nationals heed the Government's advice and defer applying to formalise their status at this stage?
We disagree with the Government's recommendation to defer formalising their status for the following reasons:
As reflected in the Technical Note there will a simpler, lower cost process for those already holding Permanent Residence (PR). Effectively it will be an exchange of status rather than a substantive application.
For those not holding PR, a full, costlier application for Settled Status will be mandatory. The Government intends this to be a more streamlined process. Realistically however, there will be a flood of applications and inevitable teething difficulties associated with a new application category and the associated technology.
Holders of PR are able to apply for UK citizenship from the date of "deemed acquisition" of PR. Practically speaking many PR holders will become UK citizens prior to any new provisions for Settled Status coming into force. There is no guarantee that those obtaining Settled Status will be deemed to have acquired this status at an earlier date. This will mean that any application for UK citizenship will be delayed by at least 12 months.
Any agreement on EU citizens' rights may well not be "stand alone". Therefore, if there is no comprehensive deal on Brexit, any understanding on EU citizens' rights would fall away, leaving EU nationals in the UK completely in the lurch.
To conclude, eligible EU nationals in the UK can only benefit by formalising their status at this stage. We recommend they do so.
Details of the technical note .
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.