A Detailed Note on EU Citizens Rights after Brexit

EU Citizens Rights in the UK after BREXIT

The British PM Theresa May revealed details of her proposals on June 26, 2017, for the rights of EU citizens, who are hoping and intending to remain in the UK after the UK’s departure from the EU. The Policy Paper published on June 26, 2017, showed the UK’s offer regarding estimated 3.2 million EU nationals in the UK, who have faced enormous uncertainty since Britain voted to leave the EU in June 2016. The other half of the Brexit deal would have to come from the EU negotiators on how the EU will be treating an estimated 900,000 or so British nationals who are intending to have a long-term residence in any of the EU states.

Protection of British citizens Rights in EU after Brexit

The British government has always opined that its priority is to reassure EU citizens of their future while simultaneously reaching a reciprocal deal for British nationals living in the member EU states.

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Summary

1. Dependants – EU citizens applying for settled status will have to bring over dependants before the BREXIT. After UK’s exit from the EU, dependents will be subject to the standard UK immigration rules
2. Access to UK Benefits – EU citizens with a settled status would continue to have access to benefits in the United Kingdom on the same basis as comparable UK citizens
3. EU Citizens having LESS than Five (5) Years Residency in the UK – EU citizens who do not have five years residence at the time of the BREXIT but are on pathway to a settled status would be able to have access to the same benefits as of now – equal access for those EU Citizens in work and limited benefit access for unemployed
4. Creation of New Rights for EU Citizens – The British Government will be creating new rights in the UK law for qualifying EU nationals residing in the UK or before BREXIT. This measure would be enforced by the UK courts. European Court of Justice would not have jurisdiction in the United Kingdom
5. Right to Vote – EU citizens will no longer be able to vote in local elections
6. Allow to Remit UK Benefits – EU nationals will be allowed to send their UK benefits to other EU countries – for instance, childcare benefits – if the EU citizen will be doing so before the cut-off date
7. State Pension – The UK will continue to pay out state pension within the EU to qualifying EU nationals
8. Healthcare – The UK will be protecting healthcare arrangements for EU citizens who will arrive in the United Kingdom before the cut-off date for UK citizens living in the EU
9. Healthcare Insurance – The UK will protect a UK European Health Insurance Card (EHIC), so that British citizens may be able to continue benefiting from free temporary health care while living in the EU
10. Student Loans – EU citizens arriving before the cut-off date will continue to remain eligible for student loans, and home fee status like persons with settled status in the UK.

Implications of Brexit on EU Citizens Rights in the UK

The Right to Vote

The plan entails that EU nationals in the UK may lose the right to vote in British local elections. The EU residents in the UK will also lose the protection of the European Court of Justice (ECJ), which will no longer have jurisdiction over citizens’ rights in the United Kingdom. But apart from these exceptions, the settled status of EU nationals in the UK will give them the right to reside/live in the UK, to undertake any legal and lawful activity, to have access and recourse to public funds and to apply for GB’s citizenship.

The UK offer includes guarantees on UK pensions including on up-rating and aggregated rights paid out abroad, and the ability of settled EU citizens to continue to have social security benefits, such as childcare benefit, paid in other EU countries.

ID Card

The European Union (EU) settled status residence proposals could also entail an identity card backed up by entry on a Home Office’s Central Database/Register. However, it is yet to be decided whether the residence document for settled status EU citizens would be issued as an identity card or it will only exist as an entry in a Home Office database.

Guarantee the EU Citizens’ Rights in the UK after Brexit

The British Government also again rejected calls from the European Union that the rights of EU citizens be upheld by the European Court of Justice (ECJ). In the offer document on June 26, 2017, British Government has stated that the ECJ will not be having jurisdiction in the United Kingdom, but the rights of EU Citizens would instead be guaranteed by the UK law.

All EU citizens need to apply for settled status

All three (3) million EU citizens residing in Great Britain would be required to apply for inclusion on the settled status register if the EU nationals in the UK wish to stay in the UK after the Brexit under the proposed measures of the Home Office. The policy paper was published as the PM Theresa May issued a statement detailing the British government’s proposals on Rights of EU citizens after the United Kingdom leaves the bloc.

EU citizens to reapply for permanent residency status

The policy paper reveals that those EU nationals who have already applied for permanent residency status documents since the BREXIT Referendum – estimated to be more than hundred and fifty thousand (150,000) – will be asked to Reapply, albeit in a smooth manner. Those who have been urged previously to show evidence of comprehensive sickness insurance will no longer be required to do so.

EU citizens can bring family members before Brexit

The speech advice EU citizens residing in the UK to bring their family members over to the UK before Brexit or face harder immigration rules, in a move that would dismay the European counterparts.

The British PM has decided not to notice the call from the European Commission to allow EU residents, living in the United Kingdom, the right to be joined by family members after the Brexit, as part of a deal on citizens’ rights for more than 3.2 million estimated EU citizens living in the UK.

Instead, the British PM Mrs May said family dependents joining European Union citizens residing in the United Kingdom (UK) after BREXIT will be subject to the same rules as those joining British citizens who will arrive after the cut-off point.

An online system to process applications

The fifteen (15) page policy paper suggests a light touch online system to process applications that will accord applicants the same indefinite leave to remain (ILR) status as granted to many other non-European nationals who have also reside in the UK for five (5) years.

The role of the department for work & pensions

The application process is to use the existing Department for Work and Pensions-HMRC income and wage records to minimise the need for the applicants to provide documents such as wage slips going back several years. It is expected that application processing would be straightforward, but the Home Office, which can process millions of visa and immigration applications each year, acknowledges that the task would be quite challenging.

Additionally, the application process system will also permit those who arrive before the cutoff date to build up to five (5) years’ continuous residence after Britain leaves the EU, but EU nationals arriving after the cutoff point would be subject to the new immigration rules/regime. The Home Office indicates that it has a broad range of options under consideration and accordingly it would be publishing proposals shortly.

Cut-off Date

There would be a cut-off date which is no earlier than the day Britain triggered Article 50 – March 29, 2017 – and no later than Britain’s withdrawal from the EU. However, the British Government said EU citizens had a two (2) year window after Brexit to apply for settled status to avoid a cliff-edge. The policy paper also states that EU citizens who arrive before the cut-off date, but with fewer than five (5) years as a resident, will be given time to stay to obtain settled status.

According to the paper, those EU citizens who arrive after the cut-off point can stay/remain in the United Kingdom for a temporary period, but they should not have any expectation of guaranteed settled status in the UK.

The Home Office has opined that it would make a blanket assumption that all EU citizens resident in Britain on the yet to be agreed cutoff date would be granted temporary leave under the British Immigration Law. There will be a provision for EU nationals to apply voluntarily before Brexit, but it will become a mandatory requirement after the cutoff date. EU citizens failing to apply within the two (2) year grace period will no longer have permission to remain in the United Kingdom.

Reactions and Opinions

Following the PM’s statement, Michel Barnier, EC’s Chief Brexit Negotiator, in a tweet stated that EU goal on citizen’s rights is to have the same level of protection as in European Union law. More clarity, ambition, and guarantees are needed in the stated position of the UK.

Moreover, Guy Verhofstadt, the European Parliament’s Brexit Coordinator, opined that some limitations remain worrisome, which requires a careful assessment.

The differences in position – on rights as well as on who will enforce them – underline how difficult these negotiations could be in the coming weeks, as both the sides try to thrash out a deal that would affect more than one (1) Million British Citizens living in the European Union and an estimated 3.2 million EU Citizens residing in the United Kingdom.

Will Families Split-up after Brexit?

The UK Government insists that there is a predominant likelihood that no families will be split up when the UK leaves the EU. However, the British Government advice is that all EU nationals and their dependant family members must obtain immigration status in the UK irrespective of when the EU Citizens have arrived in Britain. Therefore, the EU Citizens will need to seek permission to remain in the UK through the Home Office, which has the authority and the responsibility of granting a residence document in the UK.

New System for Settled Status

For EU nationals who have lived in the UK for five (5) years on a continuous basis, there is an opportunity to acquire a “settled status,” which would allow them to have the same rights as British nationals.

Is ‘Settled Status’ the same as British citizenship?

No. The eligible applicants can apply for citizenship after six (6) years of residency in the UK. The settled status could be lost if the person is out of the UK for two (2) or more years.

Who’s eligible for Settled Status in the UK?

EU nationals who have lived/resided in the UK for under five (5) years will be permitted to remain until they have reached the five (5)-year point. Those who arrive in Britain after the cut-off date but before Britain leaves the EU will be granted a “grace period,” expected to be two (2) years. That “grace period” will allow EU citizens to clarify their respective immigration status and ensure they are able to seek a settled status in the UK.

Two Year Window to Process EU Citizens’ Settlement

The scale of the administrative task facing the British Government was also laid bare on Monday, June 26, as the UK’s Home Office said it had given itself a two (2) year window to process settlement applications from EU citizens for “settled status” to protect their rights in the UK.

That could amount to over four thousand (4,000) applications per day, which according to officials and experts is definitely a challenge for HM’s Home Office.

The UK Government intends to scale up the operations for processing applications, but it has admitted that the Government had not done a study on whether there might be a surge in migration before the cut-off point.

The fifteen (15) page document will grant EU citizens, who have lived in the UK for five (5) years, “settled status” after Britain leaves the EU. This means they will be treated as if they are UK citizens for healthcare, benefits, education, and pensions.

What benefits?

The new status will facilitate EU citizens to remain in the UK and enjoy the same rights as Britons regarding access to healthcare, welfare, education, and pensions.

What’s the deal with spouses?

According to the new immigration rules introduced in 2012, the UK partner — a British citizen or recognised refugee — must have a min annual income of £18,600 (approx. $23,000) for the spouse to live with them if the husband/wife comes from outside the European Economic Area (EEA). Now, this will also apply to the citizens of the European Union as well.

What’s the deal with Ireland?

The British Government has stated that one of its main priorities is to strike a deal with the European Union over the state of the border between Northern Ireland and the Republic of Ireland. The British Government has also pledged to protect the Common Travel Area (CTA) with Ireland.

Issues requiring further negotiations

Several key areas – including professional qualifications, health care and the rights of the self-employed – have been put in the negotiating category of seeking to ensure continuity rather than a unilateral guarantee from the United Kingdom.

Issues not entirely clear so far

• A No-Deal Scenario: This entire pledge on EU citizens in the United Kingdom could be superfluous if no deal on Brexit is anticipated. A no-deal scenario could leave both EU nations in the UK and UK citizens in the member EU states in limbo and add more anxiety and uncertainty yet.
• Cut-off date: The deadline for eligibility has yet to be determined which leaves yet more questions over when the five (5) year period of eligibility will be measured from. It is likely to be anytime b/w Mar 29, 2017, and Mar 29, 2019.
• Can ‘settled status’ residents vote? While the policy paper sets out that those with settled status will enjoy the same rights as Britons, it does not clarify whether they would be allowed to vote in British elections.

Right to bring in spouse and income requirement after Brexit

The UK’s proposals on EU Nationals’ Rights makes clear that after Brexit EU Citizens living in the UK would be losing their right to bring in a spouse to live with them in Britain. However, if they can meet the requirement of an eighteen thousand six hundred British Sterling Pound (£18,600) minimum income per annum, they will be able to bring in their spouse to live in the UK with them.

EU citizens are presently exempt

Announcing Britain’s offer in the House of Commons, PM Theresa May stated that those EU nationals who had a settled status would have the same rights as British Citizens to bring family members into the United Kingdom; however, the PM did not mention the condition of £18,600 threshold in her speech to the Parliament. Here it is important to note that at present EU nationals are exempt from the requirement of minimum income threshold. Moreover, supreme court judges have already described this immigration rule as particularly harsh.

Families would be separated

In the House of Commons, the PM Theresa May was pressed to deny that families would be broken up as a consequence of Brexit. The PM’s denial came due to sustained questioning by the Opposition Labour Party over the implications of applying the minimum income threshold to the EU nationals.

PM’s Statement for protecting EU citizens’ rights

PM said that no families will be split up. Family dependents who will join a qualifying EU citizen in the UK before the BREXIT would be able to apply for settled status after five (5) years. Once the UK leaves the European Union, the EU citizens resident in the UK with settled status will be able to bring their family members from overseas on the same terms as British nationals.

Legal experts’ opinion on min income requirement

Some of the legal experts are of the view that applicants without adequate financial means and inability to pay minimal fees would be losing their entitlement to be joined by their family members, including their parents.

In comparison, the non-EU family members of British citizens have to:

• pay higher visa application fees
• pay insurance of the NHS and
• meet a strict income test

Moreover, it is almost impossible to arrange visas for parents or other extended family members, which in the case of non-EU family members, in the past, had led to the separation of many families.

Prime Minister Theresa May, however, has stated that the package on EU citizens’ rights would offer certainty for the three (3) million EU nationals residing in the United Kingdom. And those EU Citizens who qualify for settled status would be treated the same as if they were UK citizens for benefits, health care, and pensions.