The Government has formally proposed its offer of EU citizens’ rights after Brexit. If approved as part of the negotiations to exit Europe, the proposals will bring an end to freedom of movement and change the rights and status of EEA nationals and family members wishing to remain in the UK.

What are the changes to EU nationals’ rights after Brexit?

The Government has announced proposals to introduce a new “settled status” for EU citizens’ rights after Brexit.

Under the proposal, EU nationals who have lived in Britain for five continuous years will have to apply for settled status to be able to remain in the UK to work and live, to access public funds and to apply for British citizenship.

The proposal would effectively create a two-tier immigration system for EU nationals, covering those who have been resident in the UK before Brexit, and those who arrive after Brexit.

Proposal yet to be agreed with Europe

It is important to emphasise that the proposal for EU citizens’ rights after Brexit is just that – a proposal. It is the basis of an offer from the UK to EU nationals. It is subject to Brexit negotiations and may see change in response to demands from Europe – conceivably becoming more or even less “generous” toward EU citizens in the UK.

Until formal agreement has been reached with EU member states as part of the Brexit negotiation, EU citizens will continue to face uncertainty about securing their rights in the UK after Brexit, and that of their family.

Who is affected by the new “settled status” requirement?

Under the new proposals, EU citizens and nationals of Norway, Iceland, Liechtenstein and Switzerland resident in Britain for at least five continuous years will have to apply to join a “settled status” register to be able to remain in the UK after Brexit.

Those who arrive in the UK after Brexit will not be eligible for settled status. They will be subject to the new system for EU nationals in the UK. This effectively creates a dual immigration system for EU citizens, covering those who are in the UK pre-Brexit, and those who arrive after Brexit.

What is “settled status”?

Britain’s exit from Europe will see the end of EU citizens’ right to freedom of movement in and out of the UK. This will be replaced with the right to earn “settled status”.

Under the new settled status, EU citizens’ rights after Brexit are being likened to Indefinite Leave to Remain which is currently available to non-EEA nationals who have lived in the UK for more than five years.

Settled status will not be granted automatically. EU citizens will have to apply to secure their residence status in the UK. It has yet to be confirmed if an identity card will be issued to successful applicants, or if a Home Office database will be maintained, or a combination of both.

It is also proposed that settled status may be lost if holders leave the country for two years or more. Details of any exceptions have yet to be confirmed.

How will I apply for settled status?

To apply for settled status, EU citizens are expected to have to apply online to join a register.

The system is intended to plug directly into HMRC records to pull information relating to income. Details however have yet to be provided.

When do I have to apply for settled status?

After Brexit, all EU citizens in the UK must apply for settled status through the new system to secure their new rights. EU citizens may apply in advance of Brexit, but this will be voluntary.

To avoid a surge in applications immediately after Brexit, there will be a two-year grace period for EU nationals to make their settled status application and demonstrate the required five years residence.

All EU nationals resident in the UK prior to a yet-to-be-agreed cut-off date will be granted temporary leave to remain in the UK and build up five years’ continuous residence. The cut-off date will be no earlier than March 2017, when the UK triggered Article 50, but no later than March 2019 when it will actually leave Europe.

Those arriving after the cut-off date would be given a “grace period”, expected to be two years, to obtain a work permit or return to their home country. Permanent residence may remain a settlement option for this group, but there have been no guarantees that this will be the case.

When will a final decision be made about EU citizens’ rights after Brexit? 

The Government’s offer has raised a number of questions around jurisdiction, fairness, discrimination and equality of rights between EU nationals in the UK, and UK nationals in the EU (‘ex pats’). EU citizens in the UK currently have their rights protected by the European Court of Justice, however the UK is expected to withdraw from this jurisdiction following Brexit. These will be controversial points for discussion during the Brexit negotiations.

EU citizens’ rights are just one area being dealt with under the Brexit negotiations. This is unlikely to be an easy process however as initial proposals from both sides show key areas of disagreement.

Europe has already published its proposals, essentially preserving all EU citizens’ existing rights, whereas the UK’s proposal will curtail EU citizens’ rights after Brexit.

In any event, a decision will have to be made before Britain leaves Europe in March 2019, to allow for new legislation to be put in place and implemented.

In the meantime, EU nationals in the UK unfortunately remain without a definitive position on their future rights.

What if I have permanent residence status?

EU nationals with permanent residence will be able to remain in the UK.

If you have applied for permanent residency since the referendum, under the new proposals you will still be asked to register your settled status.

What about spouses and family members?

EU citizens resident in the UK currently have the right to bring over family members to live in Britain. This will change under the new proposals, which in their current form would see considerable restriction placed on EU citizens’ rights to bring family members to the UK.

According to the proposed new rules, family members of EU citizens (including children) who arrive in the UK before the Brexit cut-off date will be able to apply for settled status after five years living here.

However, those family members who arrive after Brexit will be subject to the same rules that currently apply to foreign family members joining British citizens from abroad – which entails strict eligibility criteria, stringent application process and higher visa costs. In addition, a minimum salary threshold of  £18,600 would apply to EU citizens in the UK wishing to bring over a non-EU spouse.

What if I don’t register for settled status? 

Under the proposals, if you fail to apply for settled status within the two-year grace period, you will no longer have permission to remain in the UK.

DavidsonMorris can help with your UK immigration rights

As a team of immigration lawyers and former Home Office employees, DavidsonMorris are highly experienced in advising individuals including EU citizens on UK settlement and entry options, eligibility and application processes.

We understand the stresses involved with securing your immigration status, providing advice on the options open to you, and handling any application processes on your behalf.

If you are concerned about your current or future status in the UK, contact us for advice.