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29 June 2017

12: Great Repeal Bill – She came from Greece, she had a thirst for knowledge

The post-exit position of EU citizens is one of three key issues for the Brexit negotiations, along with the Financial Settlement (Divorce Bill) and Northern Ireland’s border.

The EU published its position paper on this subject on 12 June. Theresa May unveiled the UK Government’s ‘fair and serious offer’ in Brussels last Thursday and, on Monday, the Government published its own policy paper. This post considers the differences between the EU and the UK positions. Clearly, however, we are the start of the Brexit negotiations – it is extremely unlikely that the final position on EU citizen’s rights will be that put forward at this stage by either party.

‘Settled status’

The UK Government’s view is that:

‘EU citizens who came to the UK before the EU Referendum, and before the formal Article 50 process for exiting the EU was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here. We recognise the need to honour that expectation …’

The UK Government’s proposed solution is aimed squarely at addressing that expectation. It proposes the creation of a new set of rights called ‘settled status’ (broadly equivalent to the existing ‘indefinite leave to remain’ under the Immigration Act 1971), allowing EU citizens who have lived in the UK for a continuous period of five years to be treated like British citizens for residency purposes and for entitlement to education, health care, benefits and pensions (and also apply for British citizenship, should they wish to do so). These rights would apply to all EU citizens equally, ie citizens of one member state will not be treated differently to those of another.

An important exception is made for Irish citizens. The Government explicitly states that its proposals are without prejudice to Common Travel Area arrangements between the UK and Ireland (and the Crown Dependencies), and the rights of British and Irish citizens in each others’ countries rooted in the Ireland Act 1949. Irish citizens residing in the UK will not need to apply for settled status.

The Government is clear that ‘settled status’ would not be the same as EU citizenship/free movement rights or UK citizenship. In particular, settled status would generally be lost if a person was absent from the UK for more than two years, ‘unless they have strong ties here’ (whatever that comes to mean). Moreover, the Government states that, following Brexit, it may introduce further controls which limit the immigration of EU citizens – these may be outlined in the Immigration Bill proposed in the Queen’s Speech.

By contrast, in its position paper, the EU27 seeks ‘effective, enforceable, non-discriminatory and comprehensive’ guarantees ‘to safeguard the status and rights derived from EU law at the date of withdrawal’.

The EU27 accordingly wants EU rights to apply in perpetuity, not just to EU citizens in the UK and British citizens on the continent now, but also to those who lived abroad at any time during the UK’s membership of the EU. The EU is offering a lifetime guarantee that UK citizens living in Europe can continue to enjoy all rights they currently hold, with an additional bonus freedom of movement right to allow them to work or retire in any other EU country of their choice.

Specified date

The Government’s policy paper explains that all EU27 citizens (except Irish citizens, so perhaps ‘EU26 citizens’ is better) in the UK before a specified date would be able to build up five years’ worth of residence in order to obtain ‘settled status’. EU26 citizens who arrived and became resident before the specified date but who have not accrued five years’ continuous residence will be able to apply for temporary status (i.e. leave to remain) in order to remain resident in the UK until they have accumulated five years, after which they will be eligible to apply for settled status. The Government is also proposing a grace period, anticipated to last for two years, during which settled status (or leave to remain, if five years’ continuous residency hasn’t been achieved) can be applied for.

The Government’s preferred ‘specified date’ is 29 March 2017, when article 50 was triggered, whereas the EU wants it to be the day that Britain formally leaves (29 March 2019). The Government’s policy paper says it

‘expects to discuss the specified date … as part of delivering a reciprocal deal’

which, to us, suggests the later date is more likely. Adoption of the later date (ie 29 March 2019) would also have the advantage of preventing the Withdrawal Agreement from having retrospective effect. It would also simplify the position for those EU26 citizens who moved to the UK between 29 March 2017 and 29 March 2019.

The Government states that the ability of EU26 citizens arriving after the specified date subsequently to obtain further or indefinite permission to stay will depend on the rules in place at the time at which they apply. These will be decided by the UK closer to the time, as will the rules for EU26 citizens seeking to move to the UK after Brexit.

The illustration below is taken from the Government’s position paper, and entitled Illustration of the government’s policy with regard to providing continuity of immigration rights for EU citizens and their families following the UK’s exit from the EU:

Illustration of the government’s policy with regard to providing continuity of immigration rights for EU citizens and their families following the UK’s exit from the EU

Family members

The Government’s position is that family dependants who join a qualifying EU26 citizen in the UK before Brexit will be able to apply for settled status after five years, irrespective of the specified date. Those joining after Brexit will be subject to the same rules as those joining British citizens or the post-exit immigration arrangements for EU26 citizens who arrive after the specified date. This suggests that EU26 citizens after March 2019 will lose their right to bring spouses or other family members to the UK unless they pass the minimum income test required of UK citizens who want to bring in non-EU family members.

The Government proposes that children of EU26 citizens eligible for settled status will also be eligible to apply for settled status. This applies whether those children were born in the UK or overseas, and whether they were born or arrived in the UK before or after the specified date. Specifically, children of EU26 citizens who hold settled status and are born in the UK will automatically acquire British citizenship (and with that, the right to live in the UK). EU26 parents who arrived before the specified date, but who need to apply for ‘leave to remain’ post-Brexit in order to meet the five-year residence requirement, will also need to apply for the same permission on behalf of their child when their child is born.

The EU’s proposal would grant existing EU rights to all ‘current and future family members’ of EU citizens in perpetuity, no matter their nationality (ie including non-EU citizens), who decide to join the right-holder after Brexit, and such rights would continue to apply to family members after the divorce or death of the right-holder.

To take a specific example, under the EU26 proposal, after Brexit, a British man living in Spain could move his elderly father (a UK citizen), who needs care, to Spain. But, under the Government’s proposal, a Spanish man with settled status in the UK could not relocate his elderly father to the UK.

Jurisdiction of the CJEU

The UK is willing to make commitments in the Withdrawal Agreement which will have the status of international law but insists that the Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK.

The EU wants the European Commission to monitor the status and the CJEU – or an equivalent body following CJEU rules – to enforce it.

ID cards

The Government’s position is that EU26 citizens with settled status will obtain ‘documentation showing their settled status’, eg an ID card. This is different from the ‘permanent residency card’ which some EU citizens already hold. All qualifying EU26 citizens will have to apply but the Government suggests administrative procedures ‘will be modernised’ and kept as smooth and simple as possible (i.e. it won’t be the current lengthy paper form).

This, the Government says, will help those with settled status demonstrate their ongoing rights to be in the UK and their entitlement to benefits and public services. It will be interesting to see if, post-Brexit, ID cards are rolled out across the board for other immigrants to the UK (or even more generally).

Benefits, pensions and healthcare

The UK’s position is that EU26 citizens with settled status will continue to have access to UK benefits on the same basis as a comparable UK national under domestic law. EU26 citizens arriving before the specified date who do not have five years’ residence at the time of the UK’s exit but who remain legally in the UK on a pathway to settled status will continue to be able to access the same benefits that they can access now – (broadly, equal access for workers/the self-employed and limited access for those not working).

Existing rules on the rights of EU26 citizens and UK nationals to export UK benefits to the EU would be protected for those who are exporting such UK benefits on the specified date, including child benefit, subject to on-going entitlement to the benefit. The UK will also continue to export and uprate the UK State Pension within the EU, and will continue to aggregate periods of relevant insurance, work or residence within the EU accrued before exit to help meet the entitlement conditions for UK contributory benefits and State Pension, including where entitlement to these rights would be exercised after exit.

The UK will seek to protect the healthcare arrangements currently set out in EU Social Security Coordination Regulations and domestic UK law for EU26 citizens who arrive in the UK before the specified date and for UK nationals living in the EU before the specified date. It will also seek to protect the ability of individuals who are eligible for a UK European Health Insurance Card (EHIC) before the specified date to continue to benefit from free, or reduced cost, needs-arising healthcare while on a temporary stay in the EU. The UK will seek an ongoing arrangement akin to the EHIC scheme as part of negotiations on future arrangements with the EU.

Qualifications and students

The Government will also seek to ensure that citizens with professional qualifications obtained in the EU prior to the UK’s withdrawal from the EU will continue to have those qualifications recognised in the UK (and vice versa).

The Government has already confirmed that students starting courses at a university or FE institution in the 2017/18 and 2018/19 academic years will continue to be eligible for Higher Education and Further Education student loans, ‘home fee’ status and to apply for maintenance support for the duration of their course, and have a right to remain in the UK to complete their course (but not to remain after that). Equivalent rights will continue for those with settled status and EU26 citizens who arrived in the UK before the specified date.

The position after that for EU26 citizens is unclear. Future Jarvis Cockers may find Greek students at St Martin’s College a little thinner on the ground …

‘She came from Greece, she had a thirst for knowledge. She studied sculpture at St Martin’s College.'(Pulp, Common People)
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