Safeguarding the position of EU citizens

29 Jun 2017

The future of EU citizens in the UK is a political hot potato. The current Brexit talks mean that the UK and EU need to negotiate a clear set of rules. The UK Government has declared its policy first, in a statement about EU citizens in the UK after Brexit. There is a lot of water to flow under the bridge yet before there is an agreement, but we do at least now have something to consider.

EU citizens’ resident here for 5 years before a “specified date” will be treated as having settled status. Those who’ve been here for less than 5 years can stay and become settled after 5 years. The “specified date” will be no earlier than 29 March 2017 but beyond that it’ll depend on a reciprocal deal with the EU.

If this approach is taken, anyone arriving after the “specified date” will be allowed to remain temporarily and will thereafter be subject to rules which haven’t yet been devised, but with a warning “this group should have no expectation of guaranteed settled status.”

The references to residence and settled status are where it begins to get tricky.

Residence in the context of the policy is not defined. The current rules tie the recognition of residency to work, looking for work, study or self-sufficiency so don’t provide for those who’ve simply lived here supported by a spouse or partner under the legal protection of EU treaties; protection which will of course soon disappear.

Settled status is a new concept. The policy statement seems to equate it with Indefinite Leave to Remain but without saying so in so many words. Why? Perhaps because ILR is subtly different from the treaty rights currently enjoyed by EU citizens. It’s not really a right at all. It’s granted by the Home Secretary and may be removed so it’s less secure. It’s a moot point whether the distinction is more perceived than real but I’ll park that for the moment.

For practical reasons it’s proposed there be a grace period of blanket permission for EU citizens to remain here after we leave the Union. This will probably extend for 2 years during which applications for the new settled status may be made. Thereafter it will be mandatory to hold settled status without which there’ll be no permission to remain in this country.

Dealing with something like 3 million applications in 2 years will be very challenging but we’re promised a simplified digital application and “fees set at a reasonable level.” At current fee levels the applications could bring in approximately £200 million.

Of course the new status brings new bureaucracy. Perversely, permanent residency under the current rules will not be settled status under the new regime so existing confirmed permanent residency seems to count for nothing.  

The current policy statement requires holders of permanent residency to apply all over again and pay another fee. It’s difficult to see why.  Permanent means permanent and if it doesn’t it ought to be a very simple matter to convert permanent residency to settled status.  It’s also disappointing to see the policy repeat the mantra that EU citizens don’t need permanent residency to prove their exercise of treaty rights or secure their status. If they want to naturalise as British (which many do) they must first prove permanent residence.

It’s safe to say we’ll be hearing a lot more about this.