November 29, 2022

Volume XII, Number 333


November 28, 2022

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EU Citizens’ Rights in the UK – A Number of Unanswered Questions

At a European council summit dinner last night, Theresa May outlined the UK’s offer to secure the rights of EU citizens in the UK.  The key points have been reported as follow:

  • EU citizens with 5 years’ residence in the UK before a cut-off point (expected to be no later than Brexit day) will be eligible for a ‘settled status’ category allowing the same rights to education, healthcare, pensions and benefits as other UK citizens.

  • Those already in the UK with less than 5 years’ residence and who arrive lawfully before the cut-off point will be able to continue to reside in the UK to acquire their settled status.  Details of a two year ‘grace period’ following the cut-off point remain unclear.

The offer is conditional on a reciprocal deal for 1.5 million British citizens living elsewhere in the EU.

The UK’s opening position is arguably a positive step towards an agreement in principle – Angela Merkel has described it as a ‘good start’. Nonetheless, the offer falls far short of the very clear proposals put forward by the EU Commission that EU nationals already in the UK and those arriving before we leave the EU should retain their current rights indefinitely.  There is no mention of a continuing ability to be joined in the UK by non-EU family members and Theresa May has made it clear that any post-Brexit disputes over EU citizens’ rights would be resolved through the UK courts rather than the European Court of Justice.

Whilst the UK’s detailed written proposal on Monday will undoubtedly provide further detail, it needs to address the following questions as a minimum:

  • What additional qualifying criteria beyond 5 years’ residence will apply to this new ‘settled status’?

  • Will the onerous rules on documentation to evidence 5 years’ residence currently applied to EU citizens seeking confirmation of permanent residence in the UK be relaxed?

  • In particular, will those who have spent any part of their 5 years in the UK studying or being financially self-sufficient still be required to demonstrate that they have held comprehensive sickness insurance during those periods?

  • How long will it be before qualifying EU citizens are actually issued with this ‘settled’ status? Theresa May has referred to ‘streamlined administration’ and ‘light-touch’ registration but the administrative hurdles for putting a new system in place are significant, let alone the task of processing millions of applications which is way beyond the Home Office’s current resources.

  • What will be the position of EU citizens who have already acquired permanent residence in the UK through 5 years’ continuous residence in a qualifying status? Should those who already qualify for permanent residence under current rules but do not yet have documentation to confirm their status still apply to the Home Office whilst waiting for the new system to be implemented?

The Prime Minister has emphasised that she does not want anyone already in the UK to be forced to leave or families to be split up but, without the finer detail to deal with these points, we are a long way off providing the certainty being sought by EU citizens and many will see this long awaited ‘guarantee’ as less than generous.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume VII, Number 174

About this Author

Annabel Mace Employment & Immigration Attorney Squire Patton Boggs London, UK

Annabel Mace is a partner specialising in all aspects of employment and immigration law and leads our UK Business Immigration team (part of our Labour & Employment Practice Group). She has more than 18 years' experience in advising businesses across a range of sectors with in-depth expertise in the employment and immigration aspects of bringing staff to the UK. Annabel has a particular interest in the overlap between immigration and employment law, and regularly advises businesses in relation to immigration compliance, the prevention of illegal working and defending Home Office...

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