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Brexit - The Latest on Rights of EU Citizens Currently Living in the UK

on Wednesday, 12 July 2017.

Following the UK General Election on June 8, the UK's negotiations with the EU for Brexit have now formally started.

The UK has accepted that the EU Council Negotiation Guidelines published on 29 April will be followed, and so the initial focus will be on:

  • People - the future rights of EU citizens currently in the UK, and UK citizens in the EU
  • Money - the Brexit bill
  • Ireland - avoiding a hard border and protecting the Good Friday Agreement

Both sides have emphasised that the People issue is a priority, and so on 26 June Theresa May announced the UK's proposals on future rights of EU citizens living in the UK. These will now be the subject of negotiation between the EU and UK, although the initial EU response has been lukewarm at best.

What Do the UK Proposals Look Like?

How is this going to affect EU nationals already living in the UK and those contemplating moving here - assuming the main principles of this first ranging shot prevail?

One of the big issues will be the date the government will decide is the 'specified date' which has been stated as no earlier than 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK's withdrawal from the EU. This specified date has yet to be decided.

The proposals seek to emphasise that EU citizens living in the UK are valued members of their communities in the UK. Assurance is also given to Irish citizens that the Common Travel Area arrangements between the UK and Ireland (which predate the EU) are to be protected.

Current Free Movement Rights to Be Replaced by an Application System

EU residents in the UK will continue to enjoy the rights they presently have under EU treaties. After the UK has left the EU, there will be new rights created under UK law. EU citizens will no longer acquire the right to be in the UK as they do now under EEA regulations, they will have to apply for their residence status.

The government states it will no longer require evidence that economically inactive EU citizens (students and self-sufficient persons) have previously held 'comprehensive sickness insurance' in order to be considered continuously resident in the UK, as they have to now under EEA Regulations.

Settled Status

Under the proposed UK law, qualifying EU citizens, (those who have been resident in the UK for a continuous period of five years) will be able to apply for 'settled status' (indefinite leave to remain under the Immigration Act 1971) as long as they are still resident in the UK. If an EU citizen has already been resident in the UK for a continuous period of five years before the specified date they will be eligible to apply for permission for settled status.

If an EU citizen already has a document certifying permanent residence in the UK, this will not be automatically replaced with a grant of settled status.

The proposals give rise to some interesting initial questions:

Why should EU citizens bother to apply for confirmation they have acquired permanent residence if they will have to apply for settled status?

If an EU citizen wants to apply to become a British citizen they have to show they have permanent residence in the UK by having a document certifying their permanent residence. Also, the government has stated that it will make the process for settled status as streamlined as possible for EU citizens who already hold a document certifying they have permanent residence.

What application can an EU citizen make to show they can remain in the UK, if they arrived before the specified date but have not yet been resident for five years, and therefore cannot apply for settled status?

The government states they will be allowed to stay in the UK until they reach the five year point but they will need to apply to the Home Office for a temporary residence document to remain in the UK once the UK has left the EU. Relevant EU citizens will have to do this during a period of blanket permission, which will be a generic umbrella of temporary leave to give EU citizens a grace period between the moment that free movement ends and the time they can obtain their residence document. This period is likely to be up to two years, to start immediately upon the UK's exit from the EU. Once they have been in the UK for five years continuously they will then be able to apply for settled status.

What should EU citizens do who arrive in the UK after the specified date?

  • EU citizens and their family members who arrive between the specified date and the date the UK leaves the EU will continue to exercise free movement rights up until the UK's withdrawalfrom the EU.

    From then, the grace period will apply to them so they will possibly have up to two years in which to apply to the Home Office for permission to stay in accordance with the new rules applying to EU citizens, which are yet to be determined. If the specified date is set at the date of the UK's withdrawal from the EU, these new post-exit arrangements would automatically apply to EU citizens and their family members who arrive after that date.

  • EU citizens who want to come to the UK to live after it has left the EU and after the grace period, will have to comply with future immigration controls in place at the time, which have yet to be decided.

    For family members of those EU citizens who arrived in the UK before the specified date who come to the UK after the UK has left the EU, for example a future spouse, they will be subject to the same rules that apply to non-EU nationals joining British citizens. At present these rules state the British citizen has to earn at least £18,600 (the financial requirement) to bring their spouse to the UK or meet the other ways in which the financial requirement can be met, for instance through demonstrating savings.

What About Students?

  • EU citizens who are currently studying at Higher Education and Further Education institutions will continue to be eligible for tuition fee loans and home fee status.
  • EU citizens due to start courses at those institutions in the 2017/18 and 2018/19 academic years will also continue to be eligible for student support and home fee status for the duration of their course.
  • EU citizens will remain eligible to apply for Research Council PhD studentships at UK institutions for the 2017/18 and 2018/19 academic years and also have a parallel right to remain in the UK to complete their course.

For Now, No Change

If you are an EU citizen working in the UK or a UK business that employs an EU citizen at present, there will be no change for now. It is only after the UK leaves the EU, that EU citizens will need to apply for documentation to prove they have permission to work legally in the UK.

The government has given assurance that they will be given plenty of time to do so, and that it will engage closely with businesses and others on how they will be affected by those changes.

What Next?

The above is a summary of the government proposals, which will form the basis of its position when negotiating this issue with the EU. There is therefore no certainty at this stage that these proposals will be accepted, or form the basis of future rights and obligations.

Our Brexit team will monitor the negotiations and update you as they progress and as clarity begins to emerge.

For more information, please contact any member of our Immigration Law team or fill in the form below

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