Information for EU nationals following the UK referendum
Settlement Status for EU Nationals
The UK Government has outlined the scheme whereby EU nationals present in the United Kingdom by 31st December 2020 will have their rights protected.
The scheme does not envisage that rights that have been acquired will be automatically respected but that they will continue to be so contingent upon an application for the new “ settled status” under forthcoming Immigration Rules. The broad out line of the scheme are:
- EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for ‘settled status’, enabling them to stay indefinitely.
- EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for ‘pre settled status’, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status, where they have remained continuously resident here and, from April 2019, free of charge
- EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK, according to the same rules as now.
- Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident here after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected.”
Once an applicant’s identity has been established through the on line application , then automatic checks will be made with the HMRC and the DWP to establish continuous residence in the United Kingdom. Presumably , these checks will also determine if a person has undertaken an economic activity that triggers the entitlement to settlement. Where the checks cannot prove residence then the applicant will be able to upload evidence.
Evidence of status will also be given in digital form, with no physical document being issued. The EU citizen will now fall within the general Immigration Scheme, and would be required to share these details with any potential employer, or landlord.
Because EU rights will not continue, but may be preserved contingent upon an application under the Immigration Rules, then there is a risk that even those who do apply will lose some form of facility with regards to British Citizenship. For example:
Applicants who have acquired Permanent Residence under EU Law may rely on a presence of more than six years to permit an immediate application for naturalisation once the Residence Card is received. There is no guidance to state whether new settled status will permit this, or whether applicants will need to wait a year before applying for British Citizenship.
Children of EU nationals who have been resident in the UK for more than six years may be eligible for registration as a British Citizen without the formality of applying for an EU Residence card. It is likely that in the future a new settled status will need to be sought before hand.
- Those who have already obtained their Permanent Residence document should apply for naturalisation as soon as they are eligible.
- Those who have had more than six years economic activity in the United Kingdom , should consider whether their children may register as British Citizens.
- The proposed settled status, is at heart an 18 month window of opportunity to preserve an existing status, and those whose prospects reasonably include travel, would benefit form securing their status as soon as practicable.
- For those who have acquired Permanent Residence , but have yet to obtain confirmation from the Home Office, whether they should apply now or not becomes a question of risk assessment.
If a decision on the Permanent Residence Card is likely before the 29th March 2019, then the advantage in applying now continues. With the passage of time over the forthcoming months, the expectation of so receiving diminishes entailing the possibility of making repetitive applications.
Surbiton 2nd July 2018.
United Kingdom's Proposals for EU Residents on BREXIT
The United Kingdom has now published its proposal for EU nationals resident here following BREXIT. The proposals relate to the implementation of a new Immigration status .
A new settled status will be offered to those EU nationals who have qualified for permanent residence under EU law by the time of the cut off date of the 29th March 2021. It is currently suggested that applications for this status may commence in September 2018.
EU nationals will have to have been resident in accordance with the terms of Directive 2004/38.
There remains uncertainty on what is deemed to be resident , or continuous residence. From the 29th March 2019, only close family members will be allowed to join EU nationals in the UK.
At the time of the referendum, it was important that EU nationals understood that their position remained secure until the United Kingdom left. It warranted some delay to see how the dust may settle before considering the necessity of applying or not.
There are some who view that the future requirement to obtain a “ settlement card” as proposed by the negotiating paper renders any application now, pointless. There is some force in this argument, particularly where the applicant may be elderly with little intention of traveling.
Generally there are advantages to applying now: The Home Office Internal Guidelines to Case Workers of April 2017 would imply a simpler consideration process: The Executive’s disarray of the last year does little to instill confidence for the future.
Where a person’s ultimate intention will be to apply for British Citizenship, then delay brings no advantage at all. Those who had applied for a Permanent Residence Card shortly after the Referendum are now traveling on their British Passports.
- Surbiton 20th February 2018
The BREXIT decision - what it means to EU nationals
“The crisis consists precisely in the fact that the old is dying and the new cannot be born” — Antonio Gramsci
Answers solicited in the maelstrom of uncertainty may obfuscate. Caveat aside: -
Under Directive 2004/38 and the EU Treaty, EU Nationals have the right of free movement and provided that certain conditions are met, acquire permanent residence after five years.
Although these rights derive directly from the EU legislation, this legislation only has effect because of an UK Act of Parliament. If the UK Act of Parliament is repealed these rights will no longer continue to apply to those who enter after repeal.
The question arises about the rights that may have been accrued by EU Citizens before any such repeal. In principle, EU nationals who hitherto have not required leave to enter or remain, because they have enjoyed the right of free movement , may be required to do so. However, Article 70 of the Vienna Convention on the Law of Treaties protects the acquired rights of individuals in the event of a withdrawal from a Treaty.
What the position taken by the UK authorities will be, is beyond our remit to speculate. However, where there is no new position taken permitting free movement to EU new arrivals , then even if acquired rights are protected, it will be to the advantage of those already present to obtain a Residence Permit, so that they can distinguish themselves from new arrivals.
Those EU nationals who have been resident and economically active in the United Kingdom for the past six years, may consider the benefit of applying for British Citizenship. Similarly spouses of EU nationals may wish to consider their eligibility.
- Surbiton 25th June 2016