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Brexit update

Published: 08 November 2017
Area of Law: Brexit, Business Immigration

Brexit negotiations: Update on settled status for EU Citizens

Yesterday (7 November), as part of the Brexit negotiations, the Government published the UK’s proposed administrative procedures in respect of the new ‘settled status’ for EU citizens and their family members.

Although negotiations are still on-going, this is a key development in how the Government intends to safeguard the position of EU citizens living in the UK post-Brexit.

What do the proposals say?

The current Government proposals state that individuals who have been continuously living here for five years with lawful residence (e.g. as a worker, student, self-employed or self-sufficient person) will be able to apply to stay here indefinitely by getting settled status, in line with the conditions set out in the Free Movement Directive. This means that these people will be free to live here, have access to public funds, and apply for British citizenship.

For EU citizens who are eligible to apply for settled status after Brexit, they will have up to two years after the UK leave the EU to do so. Those who are refused settled status will be deemed to be unlawful unless they secure another immigration status.

The proposals state that when the Home Office are considering applications for settled status they will exercise discretion rather than refusing applications on minor technicalities as is the case under the EEA regulations today.

They also reiterate that the new system will be streamlined and minimise the burden of supporting documentary evidence that applicants must provide, with no need to submit biometric data such as fingerprints as part of the process. They have also committed to a processing fee that will not exceed the cost of a UK passport (currently £72.50).

In the event an application is unsuccessful, a statutory right of appeal will be available in line with the current Free Movement Directive. However with the current delays to process European tribunal cases, this provides no comfort and there is still no mention of the European Court of Justice’s role in this process.

What does this mean?

For businesses it appears to indicate more stability around retaining EU employees who have worked for five years or more. For individuals it is indicative of a simple pragmatic process to secure rights to continue to live and work in the UK, by not having to account for every trip they make in and out of the UK; and not having to provide comprehensive sickness insurance for those who are not economically active thus applying a “genuine and effective work test”.

In consideration of those EU citizens who cannot yet evidence five-year residence, as long as they can evidence they were residents in the UK before Article 50 was triggered they can apply for temporary status.

What next?

Last month, the Prime Minister said that an agreement to safeguard the rights of EU citizens living in the UK and vice versa is in ‘touching distance’ and that such rights are priority in the UK’s negotiation with the EU. The next negotiations are taking place this week (9 and 10 November), However considering the administrative burden this process will bring and the recognition that the current system is ‘not fit to deal with the situation after we leave the EU’, whether the government’s intentions will materialise still remains uncertain.

Read our Brexit technical briefing update to find out more about the current proposals, and the potential options available for employers and EU nationals.

If you would like to discuss the potential impact of Brexit on your business, please contact our immigration team for a free consultation.

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