On 26 June 2017, the Government gave further details to EU nationals and their family members about their residence rights in the UK following the UK’s exit from the European Union. The policy paper addresses multiple situations which EU nationals and family members may find themselves in on Brexit day, these are considered below. Several key points are also being emphasised:
- There is no current legal requirement for EU nationals to document themselves;
- Right of residence provisions are currently unchanged, and will remain so until Brexit is confirmed;
- Upon Brexit, EU nationals and family members will attain new status in the UK, but applications will be required to confirm that;
- There will be sufficient time for these applications to be made and processed, with no ‘cliff edge’ on Brexit day;
- The new registration procedure will be different (more streamlined) to the current EU application process;
- Irish nationals are not affected because they are covered by the Ireland Act 1949 and therefore will not need to apply for new status.
The policy document leaves a lot of questions unanswered. Crucially, there are multiple references to the ‘specified date’, meaning the day on which it is agreed that EU residence rights will be assessed from. For example, an EU national who commenced UK residence before the specified date will be in a stronger position than an EU national who arrived after it, but there is no confirmation of what that date represents. It could be Brexit day in 2019, it could be Article 50 day on 29 March 2017, or any day in between. Until this date, and its significance is confirmed, there is still no certainty for EU nationals or their families.
The policy document seeks to address affected persons in the following categories;
EU nationals with permanent residence
EU nationals currently attain permanent residence in the UK by completing 5 years in accordance with the existing regulations. Those who have already secured permanent residence by the ‘specified date’ will be able to remain in the UK after Brexit, but there will be a requirement for them to register for ‘settled status’ under UK law, to confirm their ongoing status here.
EU nationals without permanent residence
EU nationals who have not acquired permanent residence by the ‘specified date’ will be covered by a grace period of ‘blanket residence permission’ for up to 2 years after Brexit. Within this 2-year period, and upon accruing 5 years’ UK residence, an application can then be made for a ‘settled status’ document. Alternatively, if the 5 years residence is not completed in the grace period, an application for further temporary residence will be needed to ‘top up’ to 5 years.
Family members of EU nationals
The rights of family members should mirror their EU sponsor, as above. A family member arriving after Brexit day would be subject to the standard Immigration Rules which apply to non-EU applicants now.
Extended family members/ family members with retained rights and derivative rights
Extended family members and those with retained rights are protected and included in the Government’s offer if their right has already been recognised by the Home Office by the specified date. Anyone whose right is recognised after this date currently has an uncertain future.
There is no mention of the rights for non-EU nationals with derivative rights of residence. The Government has confirmed however, that the CJEU will have no jurisdiction in the UK after Brexit. As the routes for derivative residence are attributable to CJEU precedent (Zambrano/Chen/Ibrahim-Texeria) it is likely that these routes for derivative residence will disappear.
Where does this leave EU Nationals and their families?
The failure to confirm the ‘specified date’ has created more confusion than this policy paper has addressed. If the specified date is confirmed as being Brexit day in 2019, then many people can be reassured by the new policy, which will protect them going forward. However, if the specified date is confirmed as being as early as 29 March 2017, individuals will have already arrived in the UK only to find that in future their residence may not be valued. The Government urgently needs to confirm the specified date so that more certainty is given.
Despite UKVI’s assurances that there is no current requirement to apply for residence documents, individuals may still want to consider this as an option. This is especially true if their already qualify for a permanent residence card. Given that it is being suggested that all EU nationals will need to apply for ‘settled status’ documents, it can be reasonably assumed that holding a permanent residence (prior confirmation of similar status) will help to simplify that process.
If you would like to speak to an advisor about your right of residence in the UK, please call us on 0161 234 6800.