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BREXIT: UK government sets out proposed 'settled status' for EU citizens

Out-Law Analysis | 03 Jul 2017 | 10:04 am | 2 min. read

ANALYSIS: The UK government has formally outlined its proposals to allow EU citizens to remain in the UK once the country leaves the EU.

Under the proposals, EU citizens with five years' continuous residence in the UK at a cut-off date yet to be specified will be entitled to apply for 'settled status'. They will then be treated as if they were UK citizens for the purposes of healthcare, education, benefits and pensions. The cut-off date will be agreed with the EU as part of the Brexit negotiation process.

EU citizens with less than five years' residence who have arrived before the specified cut-off date will be entitled to stay until they have the five years' residence needed to apply for UK settled status.

The plans could potentially result in EU citizens who have not accrued five years of legal and continuous residence in the UK losing their right to remain and work in the UK after Brexit, and the UK's highly-skilled workers from the EU may consider leaving the UK. Both of these could result in UK businesses encountering a short to long-term skills deficit (which is already evident in some sectors), making it necessary for them to up-skill existing workers outside of the EU workforce.

Businesses should consider taking steps to help those EU workers who have been living legally and continuously in the UK for five years protect their rights, and not make a blanket assumption that they will take steps of their own accord to secure settled status. Beyond this, they will need to be prepared for uncertainty and the increased costs which may result from the imposition of a new work permit system for EU citizens who arrive in the UK after the cut-off date, and will therefore be subject to a new immigration regime.

The Home Office has said that it has a broad range of options under consideration and will be publishing proposals shortly.

What is being proposed?

Qualifying EU citizens who have been living legally and continuously in the UK for five years will be eligible to apply for a new 'settled status'. This will not be available automatically, meaning that anyone who qualifies will be required to apply for inclusion on a settled status register if they want to stay in the UK after Brexit. EU citizens who have applied for permanent residency status documents since the 23 June 2016 referendum will also be required to apply for the new status, albeit via a streamlined process.

It has not yet been decided whether the residence document for settled status will be an identity card, or will simply exist as an entry on a Home Office database.

Those who have not reached five years of legal and continuous residence in the UK will be entitled to apply for continued residence in the UK on a temporary basis until they reach the threshold for settled status. Those arriving in the UK after the cut-off date will be given a two-year 'grace period' to either obtain a work permit or to return to their home countries.

After Brexit, EU citizens who have acquired settled status will have the same rights as UK citizens to bring family members into the UK. The implication is that these EU citizens would lose their right to bring a spouse to live in the UK unless the £18,600 minimum income threshold which is currently applied to family members of UK citizens is met. EU citizens are currently exempt from this minimum income threshold.

When will the process start?

The government has stated that it wants to give people the opportunity to apply for settled status as early as possible. However, there will be no pressure on people to apply for the new status straight away, and no obligation for them to do so before the UK leaves the EU.

It is expected that the application procedure will be made available before Brexit, perhaps in the summer of 2018. However, the government has stressed that it should be part of a reciprocal agreement for EU citizens in the UK and UK nationals in Europe.

Nicola Wilkins is an immigration law expert at Pinsent Masons, the law firm behind Out-Law.com.