June 26, 2017

The UK Government’s proposal on EU nationals’ rights to remain in the UK post Brexit

What does it offer?

On a reciprocal basis, the creation of a new Immigration category conferring "Settled Status" (SES) for eligible EU Nationals post implementation of a future Brexit agreement.  SES will grant EU Nationals the same rights as UK citizens for healthcare, benefits and pensions.

Is SES likely to mean the same as Permanent Residence ("PR")?

Yes, for the most part.  A key difference will be if SES is governed by UK legislation and UK immigration rules.  If so, Home Office application fees for any SES application may be up to 40 times the current fee for the equivalent application for PR.

Will the other 27 EU Member States agree?

No, not to the proposal in its current form.  Core areas of dispute are likely to include:

  • whether the European Court of Justice (ECJ) or English Courts will have jurisdiction over any disputes arising out of SES post Brexit;
  • the specified cut-off date for EU Nationals in the UK who will benefit from these transitional provisions.The UK Government's proposal is that this will be no earlier than 29 March 2017 being the date Article 50 was invoked, and no later than the date of any final Brexit agreement.The UK Government will seek the earliest possible cut-off date, whereas the 27 EU Member States will seek the latest possible cut off date
  • the status of family members of EU Nationals holding SES who seek to join the SES holder after any future Brexit agreement will be controversial.The UK Government's proposals suggest that such family members will need to meet the same thresholds, including Financial Requirements as presently applicable to eligible non EU Nationals applying to join their UK citizen family member in the UK

Should EU Nationals in the UK continue to protect their status now or await the outcome of negotiations?

We have advised clients throughout that EU Nationals and their family members should be protecting their positions now pending any final Brexit agreement.  Such steps include applications for EU Registration Certificates, and subject to eligibility, PR and UK Citizenship.  Our advice is unchanged for the following reasons:

  • To provide EU Nationals and their eligible family members the full protection of the ECJ as opposed to potentially being restricted to the English Courts for any recourse;
  • Applying now is likely to be far cheaper and provide maximum peace of mind to Employers and their EU National employees alike;
  • By applying now, eligible family members of EU Nationals lawfully residing in the UK will not be required to meet specified minimum financial thresholds;
  • In the event of "No Deal", EU Nationals, their employers and family members will find themselves in a state of limbo

Our Immigration Team provides bespoke Sessions, Webinars and Clinics covering all Immigration aspects of Brexit.  We also assist with relevant applications under the European Regulations.  For more information contact jonathan.chaimovic@clyde.com, tim.richards@clydeco.com, neena.samuel@clydeco.com, nisha.mahil@clydeco.com