EU residents within the UK

TOO GOOD TO BE TRUE?!?

There has been a great deal of talk this past week about the impact of BREXIT on EU residents within the UK. This follows the announcement by Prime Minister Theresa May regarding the right to stay for non UK nationals contained within the governments published proposals to “safeguard the position of EU citizens living in the UK and UK nationals living in the EU”. There is however a widespread miscomprehension about what is currently being proposed. The majority of people mistakenly believe that the present status quo will be preserved and therefore they need do nothing.

Before exploring this topic further, we must remember these are just proposals and part of a negotiation process. The proposals may change for better or for worse.

Presently, under EU freedom of movement rules, EU nationals have had the right to travel to, live and work in any other EU country. If you wanted to cement your position in the UK, then that would be achieved through a permanent residence card and thereafter, application for British citizenship with the permanent residence card being the stepping stone to full British Citizenship. By obtaining British Citizenship you would have secured your position in the UK permanently. Going forwards, whatever happens post Brexit, being a British Citizen, you should not then have any worries in relation to what the Government currently proposes; you should not fear being removed from the UK eg should you have any criminal convictions. You would enjoy the benefits of the welfare system, NHS and education like any other British Citizens.

In summary this is what the UK is currently proposing:

• EU citizens who have resided in the UK for five years and continue to be resident in the UK will be entitled to “settled status”. In the current proposal, “settled status” is said to be to indefinite leave to remain pursuant to the Immigration Act 1971.

• This “settled status” will not automatically be conferred; all EU nationals, including those with permanent residence documents, will have to make an application. It hasn’t been confirmed, but processing an application will likely entail a fee (as with all other similar applications).

• Those who arrived in the EU before the “cut-off date” but have not lived in the UK for five years will be allowed to remain until they reach five years, when they will be given “settled status”. During that time, they will be given “temporary status”.

• EU citizens who arrive after the “cut-off date” will be allowed to remain for a temporary period but if they want to stay longer will have to apply under whatever the domestic UK immigration rules provide at the time. This includes students, who will be eligible to apply for permission to stay to complete their course only.

• The “cut-off date” is still to be negotiated but will be between 29 March 2017 (when Article 50 was invoked) and the date the UK leaves the EU. This means that EU nationals who have entered since 29 March 2017 could conceivably be forced to leave the UK.

• There will be an automatic “grace period” of up to 2 years between the date the UK leaves the EU and the date all EU citizens will need to have a “residence document” confirming their status in the UK.

• EU citizens who lived in the UK as self-sufficient will not need to show that they had comprehensive health insurance in order to qualify for the new settled status.

It is clear from the UK proposal that all EU Nationals will need to submit an application before the end of the “grace period”, including those who already have a document certifying their right to permanent residence, although their applications will apparently be “streamlined”.  This is a major departure from the present situation where there was freedom to enter and remain in the UK. Presently, you just turn up. No formal application process exists.

Although the UK proposal does not spell it out, failure to apply for settled status will mean the individual concerned is committing a criminal offence in breach of UK immigration law. This could amount to individuals being automatically removed from the UK if they don’t obtain a settled status card.

It seems likely that in the future it will be easier to refuse “settled status” on grounds of criminality than it is now. Presently there is a very high test of posing a danger to public policy or public security which must be applied before removal can take place.  Although the proposal does not spell this out, if EU citizens with this “settled status” are involved in future criminal offending, they may be subject to automatic deportation under the UK Borders Act 2007.

The fee for the application has not yet been decided, and almost certainly there will be a fee. The proposals limiting itself to saying that they will be set at “a reasonable level”. What will be considered “reasonable” is yet to be seen. There is currently an enormous difference between the £65 fee for a document certifying Permanent Residence or a Registration Certificate, and the £993 Home Office fee + £500 Immigration Health Surcharge for limited leave to remain; and £2297 fee for Indefinite Leave to Remain.

It is possible that EU citizens will be finger-printed. All will be subject to “an assessment of conduct and criminality, including not being considered a threat to the UK”. How wide ranging this test will be remains to be seen.

The main practical difference is that, while rights under EU law are automatic, and therefore individuals do not need to apply for documents confirming their right to live in the UK, EU citizens will NOW not have any rights unless granted “settled status” or “temporary leave”. An application for this status will need to be made. The proposal says that they will “guarantee a grant of settled status”, not that individuals will automatically have this status by operation of the law.

Moreover, European Nationals will no longer have an automatic right to bring their family members into the UK, but will instead need to meet much, much stricter rules.

Whilst the present proposals are welcome news, they are just proposals. In the coming months, there will remain uncertainty and a great deal for negotiation with the remaining EU countries before the ink is dried on a deal that settles the issues once and for all. Whilst there remains such uncertainty, presently the only way to guarantee a future right to remain in the UK is by applying for permanent residency and then full British Citizenship.