The UK government has now announced its proposals for protecting the status of EU nationals living in the UK on Brexit. The EU previously published its own proposals on 29 May 2017 (see our previous Brexit Latest article).
While there is a fair amount of common ground, there are some details which will need to be ironed out in negotiations.
The UK's proposals are detailed in a document published on 26 June 2017 entitled: 'Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU'. These proposals are being put forward on the basis that, subject to the negotiations, the other 27 EU member states will put reciprocal arrangements in place for UK citizens living in their countries.
So what is the UK offering?
The UK proposes to 'create new rights in UK law' for EU nationals living in the UK at the point of Brexit. The new status will be under UK law and enforceable in UK courts. This contrasts with the EU's proposal for the European Court of Justice to retain a role in enforcing the rights of EU nationals in the UK after Brexit.
Under the proposals, EU citizens in the UK will broadly fall into three groups:
- EU nationals who have lived in the UK continuously for five years by "a specified date" (the cut-off date) will be able to apply for "settled status", which would give them a permanent right to live and work in the UK;
- EU nationals who arrive before the cut-off date, but have less than five years residence by the date of Brexit, will need to apply to remain in the UK until they complete the five years of residence required to apply for settled status;
- EU nationals who come to the UK between the cut-off date and Brexit (if these are different) would be allowed to stay for a grace period (potentially two years from the date of Brexit), during which time they must either obtain permission to live and work in the UK under the new regime or must leave the UK. For this group, there would have no expectation of guaranteed settled status under the new system.
When is the cut-off date?
The UK has not defined the "specified date" or the cut-off date and the document indicates this is still subject to negotiations. The suggestion is that it could potentially be anytime between 29 March 2017 (the date Article 50 was triggered) and 29 March 2019 (the date the UK leaves the EU). The EU's position, is that the cut-off date should be no earlier than the date the UK leaves the EU.
The cut-off date will be crucial in identifying which EU nationals will have the highest level of protection after Brexit. It will also be relevant for UK nationals living elsewhere in the EU, on the basis that reciprocal provisions will apply to them. This issue will no doubt be of key significance as we move forward in the negotiations.
So when can EU citizens apply?
EU nationals living in the UK will be required to apply for a residence document to confirm their UK status once the new system is in place. This will be a move away from the current system which has no requirement to apply for residence documentation. The proposals suggest that the new application system should be up and running sometime in 2018, to allow for early applications.
The UK's proposals helpfully confirm that there should be no cliff-edge at the point of exit from the EU. However, they are clearly aligned with the Government's stated intention of ending the current free movement rights available under EU law once the UK after Brexit. To this end, the legislative programme set out in the Queen's speech on 21 June 2017, included plans for the introduction of laws to repeal EU law in the UK and make EU nationals subject to UK law on Brexit.
There is a suggestion that individuals who have already applied and obtained residence documentation issued under the current EU provisions, would be required to apply for the new status once the new system is introduced. This requirement may well need to be revised, as it would, arguably unnecessarily, impact processing times and significantly increase application numbers. If the requirement is retained, the process for converting from permanent residence status to the new settled status would need to be relatively straightforward in order to be workable.
The proposed new arrangements would not apply to Irish nationals who have special status and are already deemed to be settled on arrival to the UK. They will continue to enjoy the same special status as before.
So what happens now?
The proposals that have been put forward by both sides will now be considered as part of the negotiations, with the aim of agreeing a set common position, which could then be applied on a reciprocal basis by the UK and the 27 remaining EU member states.
Key questions remain unanswered by these proposals, which will hopefully be answered as negotiations progress. For example it is not clear what requirements will be imposed on EU nationals who come to the UK after Brexit and this will be key for EU nationals and their UK employers who need certainty in order to plan ahead. If current immigration laws will apply, then EU nationals coming to the UK after Brexit would need to meet the current employer sponsored Tier 2 requirements. These only allow for sponsorship of roles skilled to at least graduate level and do not extend to lower skilled roles. A workable solution will be required to cover sectors which currently have a heavy reliance on EU workers to fill lower skilled roles, such as the hospitality sector.
For EU nationals already in the UK, the Government has indicated that it will look to make the new application process as streamlined and user-friendly as possible. This is likely to be challenging, in view of the sheer volume of applications. The position is likely to continue to develop as we get further into the negotiations.
You can access the UK's proposals, "The United Kingdom's exit from the European Union: safeguarding the position of EU citizens living in the UK and UK nationals living in the EU" here: https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu/the-united-kingdoms-exit-from-the-european-union-safeguarding-the-position-of-eu-citizens-living-in-the-uk-and-uk-nationals-living-in-the-eu