EU Citizens’ rights – EU v UK position

The EU position was set out 2 weeks ago when they issued their position papers on the “essential principles on citizens’ rights” and also on the “essential principles on the financial settlement”.

The EU position paper does not go into anything like the same level of detail that the UK position paper does. It has 3 pages of content whereas the UK one has 15 pages of content.

The EU paper does not touch on many valid issues that are raised in the UK paper.

The UK paper says the choice made by the Brexit vote was about the UK arrangements going forward, not about unravelling previous commitments. This is another way of saying there will be no retrospective legislation to affect the rights of EU27 citizens in the UK legally before the date of the Brexit vote.

It is common ground from both papers that EU27 citizens in the UK and UK nationals in EU27 have the right to acquire permanent residence after a continuous period of five years of legal residence.

It is also common ground that the rights of Irish citizens living in the UK will not be affected by Brexit.

The EU position is that the existing rights apply till the time of the UK’s exit from the EU. The EU position is that the European Court of Justice should be the judge in all matters affecting the rights of EU citizens.

The UK position is that the existing rights will cease to apply at some point between the date of giving notice to exit and the date of exit ie sometime within the 2 year window.  One obvious observation of that – it creates massive uncertainty for any EU citizen coming to work here after 29 March 2017. We have already advised one EU27 individual with a non EU passport that to start the clock on UK residence rights, they are for reasons of certainty better off coming to work in the UK under the Tier 2 General visa arrangement than coming in as a EU citizen.

The UK position is that the UK judicial system will be the judge on the basis the UK will create new rights in UK law for qualifying EU citizens resident here before the UK’s exit. Qualifying EU citizens will have to apply for permission to stay which will be evidenced through a residence document.

Those EU citizens who arrived after the specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but (the UK paper says) this group should have no expectation of guaranteed settled status.

The UK paper goes on to say:

1  Those EU citizens who arrived and became resident before the specified date but who have not accrued 5 years’ continuous residence at the time of the UK’s exit will be able to apply for temporary status in order to remain resident in the UK until they have accumulated 5 years, after which they will be eligible to apply for settled status. Once they have this status, they will enjoy the rights offered to UK citizens provided they continue to remain resident here. Settled status is not the same as citizenship which can be acquired after 6 years lawful residence.

2   It will be impractical to issue a very high volume of residence documents immediately when the UK leaves. EU citizens (and their families) already living in the UK will be able to continue their residence despite not yet having obtained their longer-term permission to stay, and accompanying residence documents, from the Home Office for a period of time to be determined but which will not be longer than 2 years after the exit date.

3   Family dependants who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after 5 years (including where the 5 years falls after the UK’s exit), irrespective of the specified date. Those joining after the UK’s exit will be subject to the same rules as those joining British citizens or alternatively to the post exit immigration arrangements for EU citizens who arrive after the specified date.

4   There is no need for EU citizens to apply now for EU documentation under the free movement rules to prove they are exercising Treaty rights or have a current right of permanent residence in order to secure their status post-exit.

5   The process will be streamlined to make it much easier to apply. Comment – it needs to be if 3 million people are going to apply.

It is the case at the moment that EU citizens exercising Treaty rights in the UK have greater rights for bringing family to the UK than UK citizens do.

The Government says it is considering a range of options as to how EU migration will work for new arrivals post-exit and will publish proposals as soon as possible, allowing businesses and individuals enough time to plan and prepare.

Let us hope these proposals do not create barriers to skilled and worthwhile fellow Europeans coming to work in the UK. But first of course, there is going to be a battle with our friends in Brussels to settle on the rights of EU27 citizens and UK citizens in EU27 countries. Henry V did quite well at Agincourt in 1415.

Tom Redfern