Peering over the Brexit cliff edge: The Government’s plans for EU nationals in the UK

Three million EU nationals in the UK are currently able to live, work and travel with only their passport as evidence of their permission to stay. These people will be brought within the UK immigration system, assessed and documented by the Home Office. The Government’s policy document sets out the broad idea of how this administrative feat will be accomplished; however, as many questions arise from it as are answered by it. This means that the uncertainty that EU nationals currently face is unlikely to diminish any time soon.

What the Government is proposing

All EU citizens, irrespective of when they arrived in the UK, are going to be asked to apply for residence status. This will be a new administrative procedure and separate to the current range of EEA applications.

The policy document is light on detail on what the scheme will entail and, more importantly, when it will be introduced. We have been told that it will be digitally based, with limited documentation and involve applicants sending evidence of their passport away. Applicants will also have their fingerprints taken. And of course there will be a fee. It is to be hoped that the Home Office’s processing rate will be faster than it is for the current residency applications: at the present rate it would take over 40 years to process everyone.

How it will work

EU nationals who have lived in the UK for five years will be able to apply for indefinite leave to remain (ILR) which the Government refers to as ‘settled status’ in its policy document. It will mean that they can live, work and enjoy the benefits of living in the UK indefinitely, provided they do not leave the UK for an extended period. There will be no requirement for self-sufficient EU nationals to have comprehensive sickness insurance as part of this application.

A cut-off date will be implemented for assessing residency. EU nationals who arrive before this date who have not acquired five years of residency when we exit the EU, will still be able to remain in the UK until they have clocked up the five years. EU nationals who arrive after the cut-off date will not automatically be able to settle in the UK and their future will depend on the rules in place after Brexit.

The cut-off date will not apply to family members of EU nationals. They will be able to apply for settled status after five years provided they arrive before we have exited the EU. If they arrive after this they will have to use the provisions of the immigration rules for family members and have to meet the income threshold, currently set at £18,600. Only extended family members who have EU residence cards will be eligible to apply for settled status.

The cut-off date is yet to be decided and is likely to be a bargaining chip during the Brexit negotiations.

Beware of the cliff edge!

The Goverment is desperate to avoid a panicked rush of applications and the scenario that at the stroke of midnight on Brexit day, millions of people will cease to have the right to live and work in the country they regard as home.

To ensure there is enough time for people to secure their documentation, there will be a period of ‘blanket residence permission’ starting as soon as the UK exits the EU. In essence, this is a transitional arrangement allowing EU nationals who already live here a period of time, likely to be two years, to acquire their status documents. This will be a type of temporary leave that will end when they are granted their individual residence permission. Those who have arrived after the cut-off date will be entitled to reside here during the period of blanket residence. However, once this grace period is finished their future status is uncertain and will depend on the immigration rules and the whim of the Government at the time.

Who this system applies to

Simply put, all EU nationals and their family members in the UK. The policy is clear that nationals of all EU countries will be treated alike, with no special measures for the accession countries. Controversially, EU nationals who have already acquired permanent residence will still have to apply for this residence status.

Irish nationals will continue to be able to live and work here without having to apply to regularise their status in the UK, thanks to their membership of the common travel area.

Why the scheme could be problematic

Giving EU nationals the opportunity to apply for ILR is to be welcomed but the status is not permanent: it can lapse if an individual leaves the UK for two years or more. This means that EU nationals would be unable to return to the UK following an extended period of study or a secondment abroad.

We also need to know whether EU nationals will have to show they have been ‘exercising treaty rights’ in the UK to obtain their grant of settlement. The policy document refers only to them evidencing five years of residence in the UK. It is silent on whether they will have to show that they have been a ‘qualified person’, for instance by working or studying in the UK. It may be that the Government has decided that this is too complex and burdensome to assess considering the number of applications they will be dealing with. This needs to be made clear.

EU nationals who have already been granted permanent residence or who have applied in the last year will be feeling aggrieved at the news they will have to make another application. We are told this will be as streamlined as possible but it is reasonable to ask why this is necessary when the Home Office has already accepted they have been resident for five years. At the very least they should be exempted from having to pay the fee for a further application.

Finally, how on the day after Brexit is an employer is supposed to check the right to work documents of a EU worker? At which point will employers have to ensure that their EU workers have a settled status? This will apply equally to landlords who currently have to check the immigration status of tenants. As the requirement to obtain ‘settled status’ is only mandatory after Brexit, employers will need clarity and guidance that they are lawfully employing former EU workers.

EU residents: The Brexit bargaining chip

Above all, EU nationals and their family members and employers needed certainty about their future. The policy document fails on this level because of the Government’s decision to omit the cut-off date. This date is the Government bargaining chip, to be played in the embryonic Brexit negotiations. Whilst this may strengthen the UK’s hand in Brussels, it exacerbates the concerns of EU residents and UK Businesses.

A fifteen-page policy document is never going to fully elucidate how the status of three million individuals will seamlessly transfer from one legal jurisdiction to another. The immigration bill that was promised in last week’s Queen’s speech should provide much needed clarity.

We therefore will have to wait and see how things develop. For EU residents who have already acquired permanent residence and are eligible for citizenship there is now added motivation to apply for naturalisation as soon as possible as this would seem the only way they will avoid the requirement to apply for settlement.