On 26 June 2017, the UK Government published a document in which it sets out how it intends to treat non-UK EU nationals after the UK leaves the European Union. The document was discussed in the House of Commons and in the House of Lords.
The contents of the document form a starting point for negotiations with the rest of the European Union. The European Commission published its latest position paper on the essential principles of citizens’ rights on 12 June 2017.
Below is a summary of what we know so far, with reference to paragraph numbers in the document.
What the document and parliamentary debates about it tell us
- The rights of individuals will depend on whether they are in the UK before an unspecified ‘specified date’ (figure 1 on page 13)
- Documents issued under EU law will have no status after the UK leaves the EU, in order to oust the jurisdiction of the Court of Justice of the European Union, so applications will have to be made under UK law (paragraph 18)
- There will be a ‘grace period’, possibly of two years, after the UK leaves the EU, during which time EU nationals and their family members will remain here lawfully, but will be required to make immigration applications under UK law before that period expires (paragraphs 23-26)
- Students should be allowed to remain to complete courses started in or before 2018/19 (paragraphs 34 and 54)
- Comprehensive sickness insurance (CSI) will not be a requirement after we leave the EU and this includes time spent in the UK before it leaves the EU (paragraph 22)
- CSI will remain a requirement until we leave the EU, and there is no suggestion that its definition will change before then (Commons Hansard 26.6.17 column 315)
- Entitlement to benefits, health care, pensions, education and permission to work will remain for those who are in the UK before the ‘specified date’ (paragraphs 40-57)
- Family members who are in the UK before the UK leaves the EU should be able to remain (paragraph 29)
- Family members who arrive after that date will have to meet the same requirements as family members of British citizens or other immigration requirements that will be set out in the Immigration Bill (paragraph 30)
- The government would like a similar arrangement to apply to non-EU EEA and Swiss nationals and their family members (paragraph 11)
- UK courts will have jurisdiction (paragraph 58)
- Croatian nationals who are currently subject to registration requirements will not be subject to different arrangements (paragraph 6 states that ‘these rights will apply to all EU citizens equally and will not treat citizens of one member state differently to those of another’)
What we do not yet know
- The ‘specified date’ (paragraph states that it will be no earlier than 29 March 2017 and no later than date of withdrawal, which may be 29 March 2019, and it is subject to negotiation)
- The cost of applications for settled status and temporary status, how they will be made and the format of documents (paragraphs 35 and 36 do not provide details but refer to a ‘streamlined and user-friendly’ application process, use of existing government data, the possibility of capturing ‘evidence of EU citizens’ biometric information’ and an intention ‘to set fees at a reasonable level’)
- What the requirements for settled status and temporary status will be (paragraph 6 refers to the need for five years’ continuous residence in the UK for settled status)
- The requirements for those who come to the UK after the ‘specified date’ (a new Immigration Bill will set out those requirements but this bill has not been published)
- What will happen to those who cannot meet the requirements for settled status, for example, whether they will be able to remain on a temporary basis for an unlimited period
Sample scenarios for students
Student in the UK before the ‘specified date’
- If here 5 years before UK leaves EU, a student can apply for evidence of Right of Permanent Residence whenever eligible under current EU laws, which include a requirement to hold evidence of comprehensive sickness insurance, with redress to CJEU if necessary. However, after the UK leaves the EU, the student will have to apply for settled status under UK law during the ‘grace period’ after departure, or earlier under the voluntary scheme (paragraph 38)
- If here under 5 years before the UK leaves the EU, a student will be able to remain during the ‘grace period of blanket permission’. If the 5-year period of continuous residence is accumulated before this ‘grace period’ expires, the student can apply for settled status under UK law . If by the end of this ‘grace period’ the student has not yet been in the UK for five years or does not meet the eligibility requirements, s/he will have to apply for a temporary residence document, then make another application for settled status when the 5-year period of continuous residence and all other requirements have been met.
Student arrives after the ‘specified date’ but before the UK leaves the EU
The student will be covered by EU law until the UK leaves the EU and by the ‘grace period’ after the UK leaves the EU, but will have to apply for permission to stay under the new UK rules, which are as yet unknown, in order to complete the course (paragraph 34). We do not yet know if the student will be able to apply to stay on after the course has been completed and there is no 'guarantee' of a right to apply for settled status.
Student arrives after the UK leaves the EU
The requirements the student must meet will depend on the contents of the Immigration Bill, which has not yet been published.