The rights of EU citizens in the UK

by Dentons
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The government has published a policy paper setting out its offer to EU citizens and their families in the UK. It expects the offer to also extend to Norway, Iceland, Liechtenstein and Switzerland. As the rights of British and Irish citizens in each other's countries are rooted in the Ireland Act 1949, Irish nationals will not need to apply for the new status.

The government has stated that there is no need for EU citizens to apply now for EU documentation under the free movement rules to prove they are exercising Treaty rights or have a current right of permanent residence in order to secure their status post-exit. Nor will they need to apply for new British settled status before the UK leaves the EU.

The government has set out its offer to EU citizens. The offer is different depending on how long a person has been in the UK:

People who have been continuously living in the UK for five years

This group of people will be able to apply to stay indefinitely by getting "settled status".

They must still be resident in the UK when they apply. An application must be made for a residence document confirming the same. The residence document will prove an individual's permission to continue living and working in the UK.

Even those already with a permanent residence document will be required to apply. Such documents will not be automatically replaced with a grant of settled status. A permanent residence status is linked to the UK's membership of the EU and so will no longer be valid after the UK leaves the EU.

The application process should come online before the UK leaves the EU, and hopefully in 2018. The government has pledged to make the application process as streamlined and user-friendly as possible. It has stated that it will tailor the eligibility criteria so that, for example, it will no longer require evidence that economically inactive EU citizens have previously held "comprehensive sickness insurance" in order to be considered continuously resident. It is yet to confirm the evidence that it will accept as proof of residence.

If a residence document has not been obtained before the UK leaves the EU, an individual will still have permission to remain in the UK. The government will call this a "grace period", during which time an individual should apply for and receive their residence document. The grace period will last for up to two years. If a residence document has not been voluntarily applied for before the UK leaves the EU, it will be mandatory to apply for one during the grace period when the UK has left the EU.

Settled status is not the same as citizenship – holders of this status do not have a UK passport. Those with settled status and at least six years' residence may apply for citizenship. Settled status would generally be lost if a person was absent from the UK for more than two years, unless they have strong ties here.

People who arrived in the UK before the cut-off date, but will not have been here for five years when the UK leaves the EU

These people will be able to apply to stay temporarily until they have reached the five-year threshold. They can then also apply for settled status as set out above.

People who arrive in the UK after the cut-off date

These people will be able to apply for permission to remain after the UK leaves the EU, under the future immigration arrangements for EU citizens. Any application should be made in the grace period, i.e. within two years after the UK leaves the EU. We do not yet know what the arrangements will be. The government has said that there should be no expectation by this group of people that they will obtain settled status.

In relation to the second two groups of people, we do not yet know what the cut-off date is. This will be agreed during the negotiations. However, we do know that it will not be earlier than 29 March 2017 or later than the date the UK leaves the EU.

Family members

Family dependants who join a qualifying EU citizen in the UK before the UK's exit will be able to apply for settled status after five years (including where the five years falls after the UK's exit), irrespective of the cut-off date. Permission to stay (leave to remain) can be applied for if the family member does not have five years' residence, to enable them to accrue the required five years. The family members may be EU citizens or non-EU citizens. They must be in a genuine relationship with an eligible EU citizen while resident in the UK.

Those joining after the UK's exit will be subject to the same rules as those joining British citizens or alternatively the post-exit immigration arrangements for EU citizens who arrive after the cut-off date. This will apply also to future family members, e.g. a future spouse.

Children of EU citizens eligible for settled status will also be eligible to apply for settled status. This applies whether those children were born in the UK or overseas, and whether they were born or arrived in the UK before or after the cut-off date. Specifically, children of EU citizens who hold settled status and are born in the UK will automatically acquire British citizenship. EU resident parents who arrived before the cut-off date, but who need to apply for permission to stay (leave to remain) after the UK leaves the EU in order to meet the five-year residence requirement, will also need to apply for the same permission on behalf of their child when their child is born.

We will keep you updated on the rights of EU nationals as more information is delivered from the government.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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