When it comes to Brexit, one of the European Union’s (EU27's) core negotiating principles as set out in the European Council's April 2017 guidelines is that "nothing is agreed until everything is agreed". As of now, there is no legally binding withdrawal agreement between the government of the United Kingdom and the EU27. Therefore, any proposals from either side to this point are just that: proposals and subject to further negotiation.
Further, it is important to note that the UK government will also have to conclude separate agreements with the non-EU European Economic Area (EEA) countries – namely, Iceland, Liechtenstein, Norway and Switzerland – on the status of their citizens who are resident in the UK. So the bottom line is little thus far “carved in stone”. With that said, we will cover the respective UK and EU positions on immigration thus far and give some general recommendations for the road ahead.
Timeline of Position Statement
Over the last year, several documents have been issued by both the UK government and the institutions of the EU, addressing the implications of Brexit for EU citizens in the UK and for UK citizens in the EU.
The UK Government published its proposals on "Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU", outlining its proposal to offer "settled status" under UK law to EU citizens and their families resident in the UK before the March 29, 2019 "Brexit Day".
The UK and EU published a Joint Report on progress during phase one of negotiations under Article 50 of the Treaty on European Union (TEU), including details on the post-Brexit rights of UK and EU citizens for inclusion in the final Withdrawal Agreement.
As of the end of 2017, the UK government had proposed that:
- EU citizens who have been continuously resident in the UK for five years – with or without a permanent residence document – would have to apply for “settled status” under UK law within two years after Brexit Day in order to remain in the UK.
- The "settled status" application would be available from the end of 2018, would not be excessively expensive, and would require only an ID document, a photo, and a declaration of any criminal convictions.
- Those who have already obtained a permanent residence document would not have to pay a fee for "settled status".
- Those who have been resident for less than five years would be able to apply for “temporary status” under UK law while they accumulate the five years’ residence to qualify for “settled status”.
- EU citizens who are resident in the UK before Brexit Day could be joined after Brexit Day by certain family members to whom they have been related since before Brexit Day and by their natural or adopted children born after Brexit Day.
- Those with settled or temporary status could continue to access UK benefits at the same level as currently.
- The withdrawal agreement would not affect the Common Travel Area between the UK and Ireland; therefore, Irish citizens would not be required to apply for “settled status” or to register in order to move to or remain in the UK.
- UK citizens resident in any EU member state on Brexit Day may be required to apply for a residence status (similar to "settled status") and could be joined by family members after the UK has left the EU.
- During a transition period, UK immigration rules would prevail – only allowing permanent residence to highly skilled EU citizens, only allowing free movement to those who come with confirmed job offers, and imposing a time limit of two years for EU citizens coming for lower-skilled jobs.
February 28, 2018
The EU27 produced a draft Withdrawal Agreement, a translation of December's Joint Report into legal language, with some new and controversial details on citizens' rights which are still subject to further negotiation. The draft agreement proposes that:
- EU citizens who have obtained permanent residence status in the UK before Brexit Day should not have to exchange this for "settled status" and will maintain their right to permanent residence according to the relevant case law of the Court of Justice of the European Union.
- EU citizens resident in the UK after Brexit Day can be joined by dependent family members to whom they are related at the time of the family application (rather than at Brexit Day).
- All EU citizens arriving in the UK during the transition period should have exactly the same rights under European Law as those who arrived before Brexit Day and should therefore be covered by the Withdrawal Agreement, rather than by any separate UK transitional rules.
- UK nationals living in an EU member state on Brexit Day will lose their freedom of movement rights across other EU member states after the transition period.
The UK government did not publish their own draft agreement but did publish a three-page policy paper on "EU citizens arriving in the UK during the implementation period'', also on February 28, to respond to the EU27 draft agreement and updated its guidance for EU citizens in the UK and UK nationals in the EU. In this policy paper, the UK conceded that:
- During any transition period, EU citizens and their family members would be able to come to the UK, and UK nationals move to EU, on the same basis as they do today.
- However, EU citizens arriving in the UK during this period would have to register with the UK authorities if they intend to stay for over three months; could be joined by family members "on a par with British citizens" (i.e. requiring a minimum earnings threshold of £18,600); and would be able to apply for “temporary status” while they accumulate the five years’ residence to qualify for “indefinite leave to remain” (rather than "settled status") in line with non-European Economic Area citizens currently.
March 1, 2018
However, this three-page policy paper and counter-offer by the UK government was almost immediately rejected by the Brexit Steering Group of the European Parliament, which stated that:
"We cannot accept any form of discrimination between EU citizens who arrive before or after the start of any transition. The full European Union acquis must apply during any transition, including for citizens, and no differentiation can take place. It can certainly not be the case that EU citizens arriving during any transition are forced to accept a lower standard of rights, in particular those relating to family reunion, child benefits and access to judicial redress via the European Court of Justice."
Bottom Line: What Should EU Citizens on the UK and UK Citizens in the EU Do Now?
Based on the above documents, and the fact that negotiations between the UK and the EU are far from completed, it is difficult to know much for certain about the future of EU and UK member country citizens living in each other’s respective nations. However, there are some general recommendations that can be made to place them in the best possible position for the road ahead:
- EU citizens in the UK who have already obtained a permanent residence document may or may not have to exchange this for "settled status" once this application is available – depending on the final terms of the Withdrawal Agreement between the UK and the EU27. These EU citizens do not need to do anything yet.
- EU citizens in the UK who qualify for permanent residence are advised to apply for a UK permanent residence document. This document may make any future "settled status" application free of charge or may be enough to prove permanent residence post-Brexit without need of a further application and is required for naturalization applications. However, be advised that, due to a recent increase in applications, this process may take up to six months or longer.
- EU citizens and their family members may qualify for UK permanent residence if they have been resident in the UK for at least five years continuously (not having spent more than six months outside the UK in any 12-month period) as a student, a worker, self-employed or self-sufficient, or a family member of one of these. The requirement to hold comprehensive sickness insurance (CSI) during this five-year period may apply; so they should consult an immigration specialist. Non-EEA national family members of EU citizens will also need to submit proof of their immigration status.
- UK citizens resident in an EU member state should consult an immigration specialist in that country to ascertain whether a permanent residence application is necessary or advisable in their situation, as the policy and procedure to protect their rights may vary among the member states until a final Withdrawal Agreement is reached.
As always, Pro-Link GLOBAL and its sister company, Newland Chase, are continuing to closely monitor developments between the UK and the EU and will report on more as available to ensure that our clients’ rights and futures are protected. In the meantime, clients are encouraged to reach out to their Pro-Link GLOBAL Immigration Specialists with any specific questions related to the impact of the ongoing Brexit negotiations and the United Kingdom’s eventual Brexit from the European Union.
Caveat Lector | Warning to Reader
This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. We would like to remind you that Immigration laws are fluid and can change at a moment's notice without any warning. Please reach out to your immigration specialist or your client relations manager at Pro-Link GLOBAL should you require any additional clarification. This alert was prepared by your Pro-Link GLOBAL Knowledge Management team. We worked with our sister companies, Newland Chase and Peregrine Immigration Management, to provide you this update.Information contained in this Global Brief is prepared using information obtained from various media outlets, government publications and our KGNM immigration professionals. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of any content posted or published by Pro-Link GLOBAL that extends beyond fair use or other statutory exemptions. Furthermore, responsibility for the determination of the copyright status and securing permission rests with those persons wishing to reuse the materials. Interested parties are welcome to contact the Knowledge Management Department (firstname.lastname@example.org) with any additional requests for information or to request reproduction of this material.