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Posted in: Brexit, Immigration
Date published: 05/07/2017

Following a recent announcement by Theresa May we now know more about the proposed future rights  that EU citizens can expect if they live and work in the UK after Brexit.

Mrs May’s Proposal Explained

One of the main key points is the fact that after the UK leaves the European Union all of its citizens (whether in the UK permanently or temporarily) from the 26 member states will have to apply for an immigration status because freedom of movement will end and they will no longer be able to come and go unrestricted. Other key points to note include:

(1) Specified or “cut-off” date

The government will agree a cut-off date with the EU which will be no earlier than 29 March 2017 (when the UK triggered Article 50) and no later than the date of the UK’s withdrawal from the EU, after which any new EU citizens arriving in the UK may not be given “settled status”.

(2) What is “settled status”?

Settled status is essentially the same as indefinite leave to remain, which gives the holder the right to use UK public services and access benefits and education.  Settled status does not allow the holder to obtain a British Passport, although those with six years residency can apply for citizenship to get one that way.

(3) Applying to the Home Office for permission to stay

It is envisaged that there could be around 3 million EU nationals applying to the Home Office for immigration status.  This could mean that the Home Office will have to process around 4,000 per day!

(4) New rights following Brexit dependent on the date of arrival in the UK:

  1. Arrival before the cut-off date and lived in the UK for 5 years

EU citizens who arrived in the UK before the cut-off date will be entitled to claim settled status for permission to stay as long as they have lived in the UK continuously for 5 years.

  1. Arrival before the cut-off date but not lived in the UK for 5 years

Anyone who has not accrued the full 5 years required for settled status but was here before the cut-off date will be allowed to stay in the UK in order to build up enough time to achieve the full rights after Brexit.

  1.  If an EU citizen arrives after the cut-off date

Those EU citizens who arrive after the cut-off date may be allowed to apply for settled status or they may be given a temporary status, depending on their circumstances.

(5) EU Family Members

Family members of EU citizens with settled status will have the right to come to the UK and build up their five year residency in order to achieve the same status, even if they did not live in the country before the cut-off date – as long as they come before the UK leaves the union.  Family members are generally accepted as dependent children, spouses, parents and could also possibly include cousins, although the detail is yet to agreed.

(6) Exclusion of Criminals

Criminals and those deemed to be a risk to the UK will not be allowed to stay (as is currently in place).

(7) Possible Deportation

Anyone served with the correspondence/decision from Home office in respect of Deportation should immediately seek Legal Advice in order to consider an appeal.

The 3 main benefits of achieving Settled Status

(1) Comparable to UK Nationals

Those EU citizens with settled status will have the same rights as UK citizens to include:

  1. allowing you to apply for the British Passport which will enable you to travel freely within the EU and many other countries.
  2. The right to vote – giving you a voice on how your community and UK is run as a whole; and

(2) Access to benefits

EU citizens arriving before the specified date without settled status but remain legally will continue to have access to the same benefits as they do currently.

(3) Required Documentation

Obtaining settled status documentation will enable EU citizens to live and work in the UK lawfully.

In Summary

Iwona Durlak, Senior Partner and Head of Immigration at IMD Solicitors, sums up the points:
“There is no need to obtain the documents confirming the right to permanent / temporary stay in the UK  now (unless a citizen wishes to apply for naturalisation). However, for those that already obtained the certificate of their permanent residence, the government will seek to make sure the application process for settled status is as streamlined as possible.   After the UK leaves the EU, freedom of movement will end but immigration between the UK and the EU will continue and the UK will to uphold their welcome to EU citizens’ who bring a positive contribution to both the economy and society.”

Iwona importantly adds:
“It is also worth mentioning the Scheme that the UK will establish for applications from EU residents and families for permission to stay will not be legally the same as the one that is currently available. The UK will no longer be bound by that Directive”.  And finally, “to avoid a cliff edge effect, EU nationals will be given sufficient time to make an application to the Home Office.  The grace period to do this is expected to be a fixed 2 year term from the date of Brexit.”

When to seek legal advice and whether to continue with applications for permanent residency now

  • Applying for permanent residency and getting those documents in place now will help to streamline the process when it comes to applying for settled status.
  • If EU citizens are considering applying for a British Passport now, they will still be bound by the current legislation and Rules and a permanent residency card is still necessary.
  • Following exit from the EU, EU citizens will still have to prove 6 years residency in order to apply for a British Passport, a permanent residency card will fulfil this.
  • Putting permanent residence in place now can only be advantageous and could help to avoid delays and unpleasant surprises at the border.
  • More and more applications to the Home Office are being wrongly refused due to the Home Office not accepting that an EU citizen has been settled in the UK because of the lack of documents.  These decisions can and have been successfully appealed by IMD Solicitors.
  • Regardless of whether a right to permanent status has been acquired or not, every EU citizen will have a duty to apply for a document confirming immigration status.  Obtaining a document certifying temporary residence will prove useful especially when EU citizens wish to travel before new documents are issued.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

Published by:

Iwona DurlakSenior Partner

Immigration Law – IMD Solicitors LLP

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