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The right of EEA nationals’ post-Brexit and the Government’s counter-offer to the EU

Posted by Ruken Sahin on September 06, 2017

On 23/06/17, the Government laid out its counter-offer to the EU regarding the rights of EEA nationals and their family members in a report entitled “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 UK”.

In the report, it is noted that EU law will continue to apply until the UK withdraws from the UK and so, the rights of EU citizens and their family members to live and work in the UK will remain unchanged. However, once the UK leaves the EU, the UK will no longer be subject to EU law and free movement rights will come to an end. The rights of those individuals will depend on the commitments jointly agreed between the UK and the EU in what is called, the “Withdrawal Agreement”.

That said, those EU nationals and their family members who were already in the UK lawfully, will be able to continue their activities as they were doing so post UK-EU exit.

What are some of the proposals by the Government?

1.All EU citizens including their families in the UK (regardless of when they arrived) will need to obtain immigration status in UK law (i.e. apply to the Secretary of State for permission to stay in the UK which will essentially, be evidenced through a residence document) upon the UK exiting the EU.

2.Irish citizens will not be expected to apply for settled status to continue to enjoy free movement rights in the UK after the UK leaves the EU

3.Those who currently hold permanent residence will need to apply for a new status document irrespective of their permanent residence (except for Irish citizens)

4.The test for the new settled status will be different from the test for permanent residence i.e. those who are exercising treaty rights as self-sufficient/student will not need to show they held or continue to hold comprehensive sickness insurance

5.Criminal convictions and conduct will be taken into account when considering settled status applications and so, those with criminal convictions who already hold permanent residence but apply for settled status may be refused status under the new regime

6.There will be a transitional period of up to two years during which EU citizens and their family members who were living in the UK prior the cut-off date who are permanent residents under EU law by the end of the transition period can apply for settled status

7.‘Qualifying’ EU citizens and their family members who were ‘resident’ in the UK before the cut-off date can apply during the transition period for temporary status to stay until they are eligible to apply for settled status (usually after five years continuous residence), at least if they reach settled status before the end of the transition period.

8.EU nationals including family members who arrive in the UK after this cut-off date are likely to fall under the Immigration Rules. This also applies to EU citizens who were in the UK before the cut-off date but do not make an application during the transition period.

9.The cut-off date as at today remains unclear but it is said to be no earlier than the date of notification of leaving the EU (29/03/17) and no later than the date of Brexit (expected to be 29/03/19).

10.In the event of a dispute as to whether someone in the UK qualifies i.e. whether they had permanent residence under EU law before Brexit, the UK courts will decide the question and therefore, will not be bound the Courts of Justice of the European Union.

It is clear that those living in the UK under EU law currently face enormous uncertainty as a result of the UK’s planned departure from the EU which have been heightened by some of the government’s recent proposals noted above.