EU citizenship: all at sea?

Date: 
21 July 2017

Jonathan Kingham explores the UK’s ‘offer’ on residency for EU citizens

 

  • UK and EU proposals in relation to residency/immigration status.
  • UK proposals for pre- and post-cut-off date arrivals.

The UK government published its ‘offer’ on securing the residency status of EU citizens and their family members, on and from the day that the UK leaves the EU, last month. This is one of the key matters to be covered in the initial phase of withdrawal negotiations, which formally commenced on 19 June 2017.

Under the EU’s proposal, which was issued in May, the rights of UK citizens who are residing in the EU on the withdrawal date, or have previously resided in the EU, would be guaranteed by their retaining EU law residence rights for them and their family members, for their lifetime. The same would apply to EU citizens in the UK. The EU envisages a continuing role for the Court of Justice, in order to enforce these rights.

The UK government’s position is rather different. Despite describing it as a ‘generous’ offer, the published details seem to elide very closely with the government’s preferred operational and political priorities. The government wishes to make a clean break as soon as possible by transferring existing EU law rights into domestic law, and granting eligible EU citizens and their family members ‘settled status’ under domestic law (or the ability to acquire it, within a limited time). The current ‘special status’ for Irish nationals, who are treated as having indefinite leave to remain in the UK separate to any EU law rights they may have, will continue after Brexit. This means that Irish nationals will not need to apply for the new settled status.

The UK does not wish to see any continuing involvement by the Court of Justice after the withdrawal date; instead it proposes making a number of guarantees which will have international law status, which would require a separate trans-national enforcement mechanism. The question of enforceability of future rights will be crucial, and will be a major concern to EU citizens here and UK citizens in the EU. The UK will also have to agree the final position with Iceland, Liechtenstein, Norway and Switzerland, whose citizens are treated as EU citizens for these purposes.

This article discusses the UK and EU proposals in relation to residency/immigration status; and not the related entitlements that accrue, such as healthcare, pensions and benefits.

The UK’s proposal for pre-cut-off date arrivals

EU citizens

Under the UK’s proposals, those EU citizens who arrive in the UK before a specified cut-off date, will be able to continue to reside in the UK beyond the date of withdrawal until they reach a set period of continuous residence (probably five years), at which point they will need to apply for settled status in order to continue to live in the UK. Settled status appears to be very similar to the existing status of indefinite leave to remain.

As the new system will be separate to the existing free movement regime, the government envisages a ‘smoother’, ‘simpler’ and more ‘tailored’ set of eligibility requirements than is the case currently. There are three key strands of eligibility anticipated:

  • the set period of continuous residence, provided that it is not followed by a continuous period of absence from the UK of two years (as is the case for both domestic indefinite leave to remain and EU law-derived permanent residence);
  • current residence in the UK at the time of application; and
  • ‘an assessment of conduct and criminality including not being considered a threat to the UK’.

This might suggest that applicants will not need to show that they have been continuously employed, self-employed, studying or self-sufficient during the qualifying period of residency, as is broadly the case at present under the Citizens’ Directive, and therefore as would be the case under the EU’s proposal. Indeed, the government has said explicitly in its offer paper that it will not impose a requirement for those who have not been economically active to show that they have held private comprehensive sickness insurance for any such period, which is the UK’s reading of the student and self-sufficient requirements. If implemented, this would be a relief to the many EU citizens who will be unable to meet this requirement, which can include non-working spouses/carers of British citizens and retirees. However, the position remains uncertain, as the full eligibility requirements and required evidence are to be published in due course.

There will be a ‘grace’ period beyond the date of withdrawal, perhaps up to two years, during which EU citizens will be deemed to have ‘bulk permission’ to remain in the UK. If they have not reached the relevant period of continuous residence by then, they will have to apply for further temporary permission to remain until they are eligible to apply for settled status.

The government’s intention is that the specified cut-off date is agreed with the EU as part of the withdrawal agreement, but it should not be earlier than the Article 50 notification date of 29 March 2017, and no later than Brexit day. This uncertainty is not helpful and any cut-off date earlier than Brexit day would be highly unsatisfactory for people who have moved to the UK since 29 March, eg to take up a job, as they will face further prolonged uncertainty as to whether they will ultimately be able to stay.

Unlike is the case for EU citizens at present, the requirement to apply for settled status will be mandatory. As ‘third country nationals’ after Brexit-day, the government wishes them to be subject to its ever-expanding regime of internal border control, which it terms the ‘hostile environment’. It will be necessary for pre-cut-off date arrivals to show their right to live and work in the UK to employers and landlords, and otherwise to access public services, as much as post-cut-off date arrivals, who will require permission under the new rules.

Controversially, even those who have previously obtained a document certifying permanent residence under EU law will be required to obtain a new document confirming that they have settled status.

Family members

Under the UK position paper those who count as direct family members (broadly: spouses, children, and parents/grandparents who are dependent) as well as those who have retained rights of residence, eg following divorce, will be able to apply for settled status. Those who were accepted as ‘extended family members’ before the cut-off date will also be able to apply.

However, for any family members joining an EU citizen after the date of withdrawal, they will not be subject to EU law eligibility criteria; instead they will have to meet the same requirements as family members of British citizens, or of EU citizens who are subject to the new post-cut-off date rules. If they need to meet the same criteria as for British citizens; partners will need to meet the highly controversial minimum income threshold requirements which were introduced in July 2012, and it is noteworthy that the Conservative party manifesto included a proposal to increase this threshold further. The terms of the threshold are likely to change in the coming months further to the Supreme Court judgment in MM (Lebanon) v SSHD [2017] UKSC 10, [2017] All ER (D) 172 (Feb).

Also, dependent parents and grandparents would have to qualify under the domestic Adult Dependent Relatives rules (which are virtually impossible to meet).

Other key differences between the two positions

Other differences between the two positions on pre-cut-off date arrivals include or could include:

  • the UK’s requirement for a person to be currently resident at the time of application for settled status—it will be important for the UK government to clarify what residence in this context means;
  • under the UK’s proposal, if a person with the new settled status leaves the UK for a continuous period of two years, they will lose that status for good and would have to return under the new rules;
  • the exclusion criteria; under EU law there are very specific thresholds for excluding or expelling an EU citizen or their family member on the grounds of criminality—if the UK seeks to lower these thresholds for these applications what would happen to these people? Some of these individuals could have lived here all or most of their life. There might also be a concern that the term ‘conduct’ could incorporate less serious previous breaches of UK law. If the final system does go through which incorporates any or all of these features, particularly if there is no recourse to the Court of Justice, it is likely that all of these sorts of cases will engage immigration lawyers and the Tribunals/courts for some years, eg in relation to human rights claims (assuming that the UK has not left the ECHR)
  • the requirement to apply for documents to confirm status; the EU’s position is that, as now, documents should be declaratory of rights rather than conferring them—but as noted above, this position would mean that the hostile environment could not be extended to EU citizens

It is also unclear how such an agreement would be reciprocated for UK nationals in EU Member States. Would they be given the equivalent to settled status according to the domestic regime of each Member State (which would be very difficult to enforce uniformly); or would perhaps a tailored version of the EU Long Term Residents Directive or similar apply, which would apply across all Member States?

“ Even those who have previously obtained a document certifying permanent residence under EU law will be required to obtain a new document confirming that they have settled status”

The new application process

In addition to simplifying the current eligibility criteria, the Home Office indicates that it wishes the new process for settled status to be a more streamlined process. Many EU permanent residence applications have already gone online in October 2016, with the introduction of a European Passport Return service enabling applicants to travel while the application is pending. The new process would be fully digital and use shared data from other government departments (such as HMRC) to prove residence, rather than requiring extensive evidence from applicants.

There would be a fee, which the government states that it wishes to keep at a reasonable level; but many immigration lawyers are sceptical, given the high fees that now apply generally for non-EEA nationals. Also, all applicants will be required to give their biometric data (eyescans and finger prints), which is currently only a requirement for third country national family members.

The registration of all persons currently resident in the UK under EU law rights will be a huge undertaking for the Home Office. This is one likely explanation for the proposed post-withdrawal ‘grace period’ (to allow persons to apply for settled status after the withdrawal date). Perhaps putting the cart before the horse a little, given that the offer should at this stage be just an offer, the government has indicated in other communications that it intends to open applications for the new settled status in 2018, prior to the withdrawal date.

Do the two sides’ positions cover all persons with a current EU right of residence?

There are a number of classes of person who do not fall within the UK or EU offers, or both, but who do currently have EU rights of residence in the UK. Many of these are third country nationals.

One example is EU citizens who are ‘cross border workers’, eg who live and work between the UK and another Member State, or ‘frontier workers’, who work in the UK and live in another Member State (the most obvious example is in Ireland, but cheap air travel has made both more common than might be anticipated). These are mentioned in the EU offer, but not mentioned at all in the UK offer.Also at risk are third country nationals with EU ‘derivative’ rights of residence, such as Zambrano carers of EU citizen children. It would be hoped that sufficient provision is at least made for them under the UK’s Immigration Rules relating to human rights applications.

Another group of persons not covered in the UK paper is those who have entered the UK with a Surinder Singh right of residence, which allows family members of British citizens who lived with that British citizen while the latter was exercising Treaty rights in another Member State, to enter and reside in the UK under EU free movement rules rather than domestic law. These people do seem to be covered in the EU offer.

Another group of third country nationals who might be at risk, and whose position is not covered in either offer, is those self-employed and employed Turkish nationals and their family members resident in the UK under measures related to the EC Association Agreement with Turkey.

It is very much to be hoped that sufficient provision will be made for all of these groups either as part of the negotiations, or as part of the UK’s domestic settlement.

Post-cut-off-date arrivals

  • The government’s paper provides that all EU citizens arriving after the cut-off date will be subject, from the end of the grace period (and possibly an additional period of temporary residence) to whatever new immigration regime is decided over forthcoming months, further to its belief that a wish for the UK to ‘control its own borders’ was one of the main reasons that the majority of the public voted for Brexit.
  • The government states that it will be issuing a consultation on various options shortly, but it is worth noting that any such regime may be contingent to any future agreement with the EU, such as preferential treatment for EU citizens, that might be offered as part of a free trade agreement.

What now for EU nationals and their family members?

One immediate practical question is whether EU law residence applications are now redundant. Immigration lawyers are cautious, and stress that the UK’s position is subject to negotiation.

Meghan Vozila, solicitor at Ganguin Samartin Solicitors, says that she continues to advise many clients to apply now for their EU law rights to be recognised as this may prove strategically useful, even if the final agreement requires a domestic law application to be made, and regardless of when the cut-off date may be. This could turn out to be a crucial finding of fact for third country national family members (and particularly for extended family members), in order to ensure that their relationships and acquired rights are to be recognised going forward.

Helen Smith, solicitor at North Star Law agrees, and says that her firm’s advice remains that those who qualify for permanent residence documents and intend staying in the UK long-term, should continue to apply for them. She hopes that having a permanent residence document could put the holder at the front of the queue when the UK government implements the new ‘settled status’ system, and notes that permanent residence documents are still a necessary pre-requisite to naturalisation applications.

Jonathan Kingham, solicitor, Immigration Lexis®PSL (jonathan.kingham@lexisnexis.co.uk).

© IStockphoto/RomoloTavani

 

 

 

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