EU nationals and their families who have lived in the UK for five years will be able to apply for a new settled status after Brexit with rights similar to those of UK citizens, under plans presented by prime minister Theresa May to parliament on Monday.
EU citizens who have resided in the UK for five years at a date to be specified between the triggering of Article 50 (29 March 2017) and Britain’s formal exit from the EU (29 March 2019) will be eligible for the new status.
A new status will be created
Any EU citizen in the UK for less than five years by that specific date will have the opportunity to stay until they have five years of continued residence to obtain the settled status, according to the proposals, published today by the government.
Although the proposals don’t guarantee all existing rights enjoyed by EU nationals under freedom of movement as well as EU law, the new status aims to provide EU citizens with rights comparable to UK citizens for education, benefits, pensions, and healthcare. The plans state:
- EU citizens with settled status will continue to have access to UK benefits on the same basis as a comparable UK national under domestic law.
- EU citizens arriving before the specified date who do not have five years’ residence at the time of the UK’s exit but who remain legally in the UK on a pathway to settled status will continue to be able to access the same benefits that they can access now – (broadly, equal access for workers/the self-employed and limited access for those not working). If these individuals go on to acquire settled status, they will then be able to access benefits on the same terms as comparable UK residents.
The proposals are contingent on UK nationals living elsewhere in the EU being granted an equivalent status as well as continued access to benefits and services. And, crucially, the right to remain of both UK and EU citizens affected by Brexit is likely to be dependent on the UK and the EU agreeing to an overall exit deal.
The eligibility criteria
The new status is in effect an ID card. The exact eligibility criteria will be set out in due course, the government has said, but the paper published today pledges that the new process will be "streamlined and user-friendly". The proposals say it will include:
- A requirement for the applicant to have been resident in the UK for a set length of time. We propose to align this with the current EU general standard for permanent residence – which is in most cases five years; and
- An assessment of conduct and criminality, including not being considered a threat to the UK.
The proposals also state that the government will use data it holds, for example on income records, to minimise the burden on applicants.
The right to apply for a new status will apply to family members and partners in the UK
The right to apply for the new status will apply to family members and partners resident in the UK at the cut-off date, including those "who do not yet have five years’ residence."
The plan also extends to the children born to those eligible for the settled status, as set out in one of several case studies published by the government alongside its proposals:
Example case study: child born to EU citizen parents qualifying for settled status
Audra and Ignas moved to the UK from Lithuania in 2015. They are married and are expecting a baby later this year.
After the UK leaves the EU, Audra and Ignas will be able to stay in the UK as now during the grace period without having to apply for permission to do so. Once they have been resident for five years, in 2020, they will be entitled to apply for settled status which will allow them to settle in the UK permanently.
When their child is born later this year, their son or daughter will also have the opportunity to stay permanently in the UK. Once they acquire settled status, Audra and Ignas will need to apply for settled status on their child’s behalf. Or they can instead choose to register their child as a British citizen.
However, the same rights will not automatically extend to future family members falling short of the current status under EU law. The government's proposal signals that in future the same threshold – an annual income of at least £18,600 – required of UK citizens who want to bring in a spouse, or new arrangements all together, would apply in such cases:
- Future family members of those EU citizens who arrived before the specified date – for example a future spouse – who come to the UK after we leave the EU, will be subject to the same rules that apply to non-EU nationals joining British citizens, or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date.
How does it compare to the EU's proposals?
The UK proposal comes after the European Commission’s Brexit task force published a paper earlier this month outlining its position on how it would like to see the rights of EU27 citizens in Britain, as well as those of Britons residing elsewhere in the UK, guaranteed.
The EU wants to protect and guarantee all existing rights for life. Under the plans put forward today by May, the settled status could be lost if the individual in question leaves the country for more than two years:
- Indefinite leave to remain is also known as settlement or ‘settled status’, and having this means that a person can stay in the UK without any time restrictions. Indefinite leave can lapse, if the holder stays outside the UK for a continuous period of more than two years.
The EU’s chief negotiator Michel Barnier said the proposals required more ambition, clarity, and guarantees.
Another difference between the UK and EU proposals is over who polices the agreement. In the UK proposal, the commitments to EU citizens would be enforceable through UK courts. The EU argues that there needs to be a mechanism to settle any disputes and protect citizens from possible changes in national legislation, in the UK or elsewhere in Europe, and points to a role for the European Court of Justice (ECJ).
Although the UK plan clearly states the ECJ will not have jurisdiction in the UK, the government says it stands ready to make commitments in the overall withdrawal agreement which will have the status of international law.
There will be a two-year grace period
Once Britain leaves the EU in 2019 freedom of movement will come to an end. But the UK proposes at that point to introduce a blanket grace period of up to two years for all EU citizens lawfully in the UK:
- This will be a generic ‘umbrella’ of temporary leave applying to all existing lawful EU residents (and their families), to give them a grace period between the moment that free movement ends and the time they obtain their residence document – allowing them to remain lawfully in the UK, and continue to undertake their lawful business during that interim period.
During this window everyone who arrived in the UK before the withdrawal date will be able to regularise their immigration status with the Home Office.
Anyone who arrived before the cut-off date and doesn't immediately meet the five years required for the new settled status will be granted a temporary residency status that will give them the opportunity to reach the required five years.
But anyone arriving after the cut-off date and who is granted a temporary residence status during the grace window is not guaranteed to be eligible to apply for permission to stay in the UK permanently:
Example case study: EU citizen who has arrived after the specified date
Aisha is a German national who arrived in the UK after the specified date. She is self-employed and would like to settle in the UK. If the specified date is pre-exit, Aisha can still exercise her free movement rights to live in the UK until the UK leaves the EU.
However, once the UK leaves the EU, Aisha’s free movement rights will end. Like Christophe, Aisha will not be required to leave the UK when we exit the EU, she will be able to stay during the blanket permission period – but she must apply for permission to stay (‘leave to remain’) here beyond that period. If Aisha successfully applies for permission to stay, she will be granted a temporary residence document.
If Aisha wishes to stay in the UK after her temporary permission expires, she will need to obtain further permission. Her eligibility for further permission will depend on the rules in force at that time. Unlike Christophe, she is not guaranteed to be eligible to apply for permission to stay in the UK permanently.
By not setting a clear cut-off date, the government is adding uncertainty to the future status of those employed between the Article 50 letter and the date of withdrawal. The proposals also don't provide much clarity on the government's longer-term intentions in regards to arrivals beyond 2019.
Child benefits, pensions, and healthcare
The UK plans will allow those who are sending child benefits abroad at the point of the cut-off date to continue to do so. The government also hopes to continue existing pension arrangements, including annual increases known as uprating. According to the plans:
Existing rules on the rights of EU citizens and UK nationals to export UK benefits to the EU will be protected for those who are exporting such UK benefits on the specified date, including child benefit, subject to on-going entitlement to the benefit;
The UK will continue to export and uprate the UK State Pension within the EU.
(It is worth remembering that imposing restrictions on child benefits sent abroad was one of the concessions won by David Cameron during his renegotiation of the UK's status in the EU.)
And the UK intends to keep in place most existing healthcare arrangements:
Example case study: UK nationals currently residing in another EU Member State with UK-insured healthcare
Sarah is a UK national who retired to Spain in 2005. She is drawing a UK state pension and has a UK S1 form registered in Spain. The S1 form is a standard EUcertificate which demonstrates an individual’s entitlement to healthcare in their country of residence. Individuals are required to register the S1 document in their new EU Member State of residence. This means that the UK reimburses Spain the cost of providing medical treatment to her.
Sarah has a UK issued EHIC, which she can use if needed during temporary visits to another EU country (not the UK).
After the UK leaves the EU, we want to secure Sarah’s current healthcare entitlements so that they will continue on the same basis.
There are many unknown details
The UK proposal confirms that current EU students and those starting courses in 2017/18 and 2018/19 academic years will continue to be eligible for student support and home fee status for the duration of their course, and will have the right to complete their course. The plans state:
- The UK will ensure qualifying EU citizens who arrived in the UK before the specified date will continue to be eligible for Higher Education (HE) and Further Education (FE) student loans and ‘home fee’ status in line with persons with settled status in the UK. Such persons will also be eligible to apply for maintenance support on the same basis they do now;
- To help provide certainty for EU students starting courses as we implement the UK’s exit (including those who are not currently living in the UK), we have already confirmed that current EU students and those starting courses at a university or FE institution in the 2017/18 and 2018/19 academic years, will continue to be eligible for student support and home fee status for the duration of their course. We will also ensure that these students have a parallel right to remain in the UK to complete their course.
But it is not entirely clear from the documents published by the government how long students will be able to stay to look for work after graduation. One of the principles set out in the EU's proposals is a guarantee of continued rights when EU27 citizens and UK nationals change status (for example that an EU student could become a worker after completing their studies without having to comply with immigration law for third-country nationals).
Other details missing from the document that the EU has set out in its proposal are the recognition of professional qualifications after Britain leaves, and the status of people that work, or have worked in the UK while residing elsewhere in the EU or of Britons that work, or have worked in the EU27 while residing in the UK.
Compromises on both sides are likely to be needed.