UK proposal sets baseline for negotiations on EU citizens’ rights

26 Jun 17

UNITED KINGDOM

IMPACT – HIGH

Today, the U.K. government published details of its proposal on how it will treat EU citizens in the U.K. in light of Brexit proceedings, including proposals on how EU citizens would apply to remain in the U.K. following formal withdrawal. The proposal, titled “Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU,” is the first written offer from the U.K. government addressing the contentious issue of the status of EU citizens.

BAL reads the policy set forth by Theresa May and the Home Office as a minimum baseline of rights for EU nationals after Brexit and expects the EU to push significantly for greater rights during negotiations. EU Brexit negotiator Michel Barnier responded to the proposal stating that the EU’s goal on citizens’ rights is to maintain “the same level of protection as in EU law” and to guarantee those rights, “more ambition, clarity and guarantees [are] needed than in today’s UK position.” Therefore, BAL anticipates additional negotiating and additional shifts before EU nationals have full clarity on their future status in the U.K.

Key points:

  • The proposal does not apply to Irish nationals; their status as immediate permanent residents will continue and they will not need to apply for further status.
  • All other EU nationals will need to apply for a new residence status (“settled status”) via a new simplified and “modern” process.
  • To avoid a “cliff edge,” there will be a grace period (likely two years) after Brexit, during which time EU nationals will need to apply for this new status.
  • There will be a cut-off date for eligibility (likely to be the date of Brexit but stated to be anywhere between March 29, 2017 and the day of Brexit). Those in the U.K. before the cut-off date will have the right to accrue five years’ residence needed for settled status. Those who arrive afterwards will not.
  • Those with five years of residence in the U.K. on or before the date of Brexit or end of the grace period can apply for settled status and those without five years of residence by the end of the grace period will need to apply for limited leave to remain (a visa with an expiration date).
  • Current EEA permanent resident status will not be sufficient to prove their rights to remain in the U.K. after the grace period. An additional, albeit streamlined, application will be required from every EEA national.
  • Family members joining after Brexit would be subject to U.K. laws on the families of settled persons after the expiration of the grace period – this means high costs and far tougher criteria.

BAL anticipates that given the U.K.’s proposal, the following areas will be likely areas of change and a focus for EU negotiators:

  • The EU is likely to seek greater protection of existing rights for family members of EU nationals. As is, the U.K. proposal would leave EU national family members who seek to join their EU family member after Brexit unable to qualify under the stricter U.K. legislation currently in place.
  • EU negotiators are also likely to focus on protecting existing documented rights, as the U.K.’s proposal would require EU nationals who have already applied for and received a vignette attesting to their permanent resident status to apply again.
  • The cut-off date is likely to fall on or close to Brexit day, as the U.K. wants a cut-off date that falls between March 29, 2017 (Article 50 trigger date) and the date of exit (estimated March 2019), while the EU is pushing for the cut-off date to be no earlier than Brexit day.
  • The cost burden of applying for settled status and/or work authorization post-Brexit will be an important factor and negotiating point that will impact EU nationals and companies sponsoring them.

BAL Analysis: The U.K. offer is merely a proposal at this point and is likely to change as the EU negotiates its position. The proposal indicates that EU nationals in the U.K. would need to re-apply for their residency status either under a new voluntary system pre-Brexit or as a legal requirement post-Brexit; as such, they may wish to discuss with a BAL professional whether to undertake the laborious application process at this time.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@balglobal.com.

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