The Brexit ball of EU citizens' rights, but in whose court is it anyway?

The Brexit ball of EU citizens’ rights, but in whose court is it anyway?

15 November 2017

The European Parliament has issued a stark warning that it may veto any Brexit deal agreed on the basis of the UK’s current proposals on EEA and Swiss (hereinafter referred to as ‘EEA’) migration, which it described as ‘inadequate’.

UK proposals
Last week, the UK government published a technical note intended to provide further detail on its initial proposals on ‘safeguarding’ EEA nationals’ rights in the UK and UK nationals in the EU, published in June.

Some of the proposals include the UK Government offering a two year implementation period after the UK officially leaves the EU (ie at least until 29 March 2021), during which EEA nationals would have ‘deemed’ leave under UK law. During this two-year period between 29 March 2019 and 29 March 2021, the UK government will expect all EEA nationals and their family members to make an application for UK immigration permission granting:

  • ‘settled status’ to those who have already completed five years residence in the UK and who meet certain residence and additional criminality criteria; and
  • temporary status, for those who have not completed 5 years residence in the UK – allowing them to complete 5 years to then apply for settled status;
  • EU nationals arriving after the yet to be determined ‘cut-off date’ (which unofficially the UK government appears to have conceded would be 29 March 2019) would need to meet the new (yet to be determined) Rules in place for EU nationals post Brexit.

The UK government has further proposed that family members arriving after the cut off date will be subject to same rules governing family members joining British Citizens (subject to a controversial financial requirement of£18,600 income per annum or £62,500 in savings) or, if they themselves are EU citizens, the post-Brexit arrangements (which are yet unknown).

A voluntary scheme of the new registration process is expected to be up and running later in 2018.

European Parliament position
The European Parliament’s Brexit steering group has signaled that there are ‘major issues’ which the UK proposals would still need to address to secure equal and fair treatment for EEA citizens in the UK after Brexit.

The group has rejected the UK’s proposal to subject applicants for ‘settled status’ to any additional criminality and other checks which do not apply at the moment. Furthermore, it is their view that acquiring settled status should be automatic and only in the form of a simple ‘declaration’, not an application to the Home Office to ‘grant’ status.

Some of the additional comments made by the group include requiring the new ‘settled status’ scheme to:

  • allow families to make one joint declaration (not separate declarations for individual family members);
  • place the burden of proof on the Home Office to challenge the declaration (line with EU law);
  • be cost-free;
  • only come into effect after any implementation period has ended (ie not until at least until 29 March 2021). It argues that until then, freedom of movement rights should continue to apply.
  • on family reunification, it has expressed that it will not accept any weakening of existing rights that EEA citizens currently enjoy.

What next?
As the UK government has already signalled that those with documents certifying permanent residence (PR) in the UK may be treated more favourably in being allowed to potentially ‘swap’ their PR document for ‘settled’ status, it may be prudent for individuals to start the application process now. Crucially, obtaining a PR document is a pre-requisite for EEA nationals to be able to naturalise as British citizens. We would therefore reiterate that it would be advisable that those eligible to naturalise as British citizens apply to do so (subject to certain considerations).

For further information on the implications of Brexit for employers and EU nationals, and our Brexit services, contact your assigned lawyer or email enquiries@lauradevine.com.

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