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EU Citizens in the UK post-Brexit: the Government's offer.

View profile for Louis Harman
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The Government recently published their proposals setting out what they hope to offer European Citizens living in the UK, in lieu of their Free Movement rights, after the UK has formally left the European Union. We have prepared a report on what the offer entails and how it differs from the current system.

The current legal rights of Free Movement are quite simple and straightforward. Any EU Citizen residing in another EU Member State will ordinarily be in one of the three ‘stages’ as set out below:

Initial Right to Reside: Allows EU Citizens to reside in an EU Member State for up to 3 months from the date of entry.

Extended Right to Reside:  Allows EU Citizens to reside in an EU Member State beyond the 3 month point as long as they are carrying out a qualifying activity (i.e. working, seeking work, studying etc.)

Permanent Residence: After 5 years of residence in accordance with the above, the EU Citizen will normally obtain the automatic right of Permanent Residence. The qualifying activity requirement no longer applies.

These three rights are EU law concepts and are therefore derived from EU treaty law. When the UK leaves the EU, we will no longer be a party to those treaties and the Government plans to repeal a series of key Acts of Parliament that import EU law into UK law.

The Government takes the view that the three ‘Rights of Residence’ listed above will cease to then be recognised in the UK.

The Government’s offer

If that is indeed the case, then the Government want to offer a new Immigration arrangement to protect the rights of EU Citizens currently living in the UK and those who have entered the UK since the triggering of Article 50. The date that the EU Citizen entered the UK will however be vitally important as it will determine what type of application they might eventually have to make. There are a number of intricate mechanisms in their offer that need to be further explored.

The ‘Cut Off Date’

The cut off date is the date after which any EU Citizens entering the UK will eventually be required to make an application under the ‘new system’ – whatever that will be – in order to remain in the UK.

Those EU citizens who arrived in the UK before the cut off date will be able to continue living in the UK as they were, but they will eventually be required to apply for an immigration document depending on which of the three above stages they are in during the ‘grace period’.

The Government has not yet negotiated when the cut off date would be but it could be any date between triggering Article 50 and the UK exiting the EU.

Grace Period

The grace period is proposed to come into effect from the day we leave the EU. The Government suggests that this will be no longer than 2 years. During that period, EU Citizens in the UK will not be required to apply for any kind of Immigration document but may do so to prepare for when the grace period ends.

Those entering during the grace period will be subject to the new system of rules immediately.

After the Grace Period

Once the period ends. EU Citizens who entered the UK before the cut off date will need to apply for a document which should broadly mirror the type that they could apply for under EU law.

EU Citizens who entered after that date will need to make an application under the new system subject to new immigration rules and criteria.

Summary

There is some clarity in the Government’s proposal, but it is far from being set in stone at this stage; negotiations are still ongoing between the UK and EU.

The short-term message is that EU Citizens do not need to do anything at this stage. The Government advises that no applications will need to be made until the grace period ends but it will allow EU Citizens to make their applications during the grace period so they are prepared well in advance.

The longer term message is that all EU Citizens will need to be documented eventually. And we would advise that applications are made sooner rather than later.

For those who already have Registration Certificates, Residence Cards, Documents Certifying Permanent Residence or Permanent Residence Cards under the current system, the Government intends to make it as easy as possible for those Citizens to transfer on to the new system. It may therefore still be worthwhile making applications for EU law documents now to aid in the transition process later down the line.

Please be aware that this article is based on the June 2017 Government proposal contained within the document titled: ‘Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’. This proposal may be subject to change and may not reflect the true legal position post-Brexit.

If you have any concerns about how anything raised in this article might affect you, your family or your business, please contact a member of our immigration team on 01522 541 181 or email Louis.harman@chattertons.com

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