Comments on the Brexit day cut-off date by Gary McIndoe, managing director, Latitude Law

06 November 2017

The government's seeming quiet acceptance of Brexit day (the day the UK formally leaves the UK) as the cut-off point for EU nationals to have their rights protected is interesting. It would certainly suggest some concern within Downing Street as to how the UK will continue to source talent to support areas such as the NHS, agriculture and manufacturing post-Brexit.

What the change means in practice is that EU nationals living in the UK up to Brexit day should, in theory, have more certainty when it comes to understanding their immigration status. Those who have been living in the UK at Brexit day for five years will be able to apply for 'settled status', which will broadly replace the current permanent residence status in place now. EU nationals with less than five years' residence will have a two year grace period to 'top up' and then apply for settled status. Those with less than five years' residence at the end of the grace period may be able to apply for temporary permission to remain – but no details are currently available about how this might work in practice.

EU nationals with rights deriving from relatives (such as a non-EU family member now divorced from their EU sponsor) will be covered by the above if their rights have been formally recognised by the Home Office by Brexit day. To date the government has given no formal indication as to how non-EU nationals with derivative rights of residence will be treated, although a leaked Home Office briefing paper did not contain positive news. This class of people includes non-EU nationals who are the primary carer for an EU child and who have had no other EU sponsor. As the government has confirmed that the Court of Justice of the European Union will no longer have jurisdiction in the UK, and the current laws protecting this class of individual derive entirely from this court, the residence rights of these individuals appear precarious.

If the government truly has conceded to a Brexit-day cut-off point, it must provide further guidance to EU nationals and those deriving residence rights through the European courts as a matter of urgency.”

If you would like to talk to one of our experts about your status, or how someone else's status affects you, please call our Manchester office on 0161 234 6800 or Liverpool on 0151 305 9600.