The proposal of Theresa May was quoted as a ‘generous offer’ to EU citizens offering everyone who had acquired permanent residence a new ‘settled status’.
At face value, it appears to be a good deal. However, when one reads the small print, it becomes apparent that there is no value in the offer, and it lacks the certainty that Theresa May continuously refers to. The offer has come after the EU Council Decision of 22 May proposing their policy on safeguarding the position of EU citizens in the UK and UK nationals in the EU. Therefore both sides have now adopted their position. However, the UK’s offer is nowhere close to what EU would like to secure as a part of the exit deal.
The Government website provides a short summary of their ‘promise’.
“Since the result of the referendum last summer, the UK Government has made it absolutely clear how important it is that we secure as early as possible both the rights of EU citizens in the UK and UK nationals in EU member states. We are now seeking to provide EU citizens with certainty about their future by publishing a policy paper which sets out our offer to them.”
Theresa May has, since triggering Article 50, made it clear that she wants nothing else but to provide certainty for all EU citizens in the UK and those Brits living in the other Member States. However, the proposal offers no certainty and is lacking definitive answers and dates.
The UK continues to affirm that the rights of the EU nationals are protected and are to be complied with under the EU law until the official day of Brexit.
However, this gives little certainty as to the future rights of over 3 million EU citizens living in the UK even though the UK has proposed a new streamlined process for the European citizens to register to gain their new ‘settled status’ according to the ‘generous’ offer of Theresa May.
This online application will apply to all EU citizens who have been continuously living in the UK for over 5 years. This requirement is the same as under current EU law where those with over 5 years of residence can apply for a document certifying permanent residence. Moreover, since the criteria that will apply are national, not based on EU law, the calculation of this period might differ. The proposal says ‘The type of application you’ll need to make will depend on your circumstances, when you moved to the UK and how long you’ve lived here’. The questions arise regarding the type of circumstances that an EU citizen will need to fulfil to be able to stay?
While the UK promises to make the process as streamlined as possible for the EU citizens who already have Permanent Residence Status, they will still need to apply to be able to remain in the UK. The UK position is that anyone with the document certifying permanent residence may mean nothing in the future. What is the reason for this? Does it mean that the future criteria will be certainly stricter?
Moreover, why the current permanent residence document under free movement rules is not sufficient to prove (for example, to employers or public service providers) that you have permission to continue living and working legally in the UK after Brexit. It seems that the criteria that are to be applied for the new ‘settled status’ will be much stricter than under EU law if the Home Office cannot respect the now issued documents certifying permanent residence rights.
Also, what will be the cost of the new ‘settled status’? Theresa May refers to a ‘reasonable’ cost, but under the current British Immigration Rules, the fee for indefinite leave to remain which is equivalent to the ‘settled status’ is set at £2,297. Will this be the price the EU Nationals would have to pay to stay?
The offer gives some consideration to those citizens who will not qualify for ‘settled status’ as they will not complete their 5 years period before the ‘cut-off date’. However, nowhere in the proposal, the date is mention. It may be the date of triggering Article 50 or the Brexit Day, but it could also potentially be historic.
If Theresa May wanted to give certainty to EU citizens, she would have set the ‘cut-off date’.
Those EU citizens who arrived and became a resident before [un]specific date but who have not accrued five years’ will be able to apply for a temporary status. Moreover, those EU citizens that arrive after the [un]specified date will be allowed to remain in the UK at least temporary and may become eligible. However, there should not have expectations of guaranteed settled status.
The proposal mentions ‘People who arrive after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under the future immigration arrangements for EU citizens’. What are the future immigration arrangements? Where is the certainty that Theresa May was offering?
The most troublesome part of the proposal is the lack of consideration for Non-EU family members of EU nationals. What will happen to them since they will no longer be able to live in the UK under the more lenient regulations of the EU? Those Non-EU nationals who have divorced their EU partners will also not be eligible to stay. The offer also fails to consider whether the UK citizen who currently is residing in Spain will retain their full free movement rights to move to Germany in the future.
Moreover, there is also no certainty as to what the ‘grace period’ will be for the EU citizens to apply for their new status. This will ‘be confirmed during negotiations’ and ‘if you haven’t received a document confirming your new immigration status by the end of this [again unspecified] period you will no longer have permission to remain in the UK.’
What if some EU citizens do not meet the future immigration requirements of which we have no mention whatsoever?
The UK offer fails to discuss the judicial enforcement, and while the EU wants the rights of EU nationals to be enforced by the Court of Justice of the European Union (CJEU), the UK rules out the jurisdiction of the CJEU.
Much of the proposal uses words like ‘seek to ensure’ or ‘akin’ which does not by definition refer to certainty. It is clear that the UK position indisputably offers worse terms both for EU citizens in the UK and UK citizens in the EU. The EU proposal asked for the permanent residence documents to be respected without the need of ‘transferring’ of the status.
While the UK will exempt people from the requirement to have Comprehensive Sickness Insurance, it has been argued that the current UK law breaches EU law anyway. Therefore, it may seem like a ‘generous offer’, but in reality, it is nowhere close.
The proposal also is silent on British Citizenship, and it does not mention anywhere how a ‘settled person’ can acquire British Citizenship in the future. It only mentions that it will be possible. Does it mean that the criteria will be different and/or more expensive to those currently under EU law?
At the moment, it seems that the only way to ultimately guarantee your continued right to live and work in the United Kingdom is to become a British citizen. In order to do this, the first step is to acquire Permanent Residence. However, becoming a British citizen may also be a disadvantage for some nationals or if you have non-British family members living with you in the UK who are relying on your status under EU law. While we are still awaiting a decision of CJEU in Lounes, the Advocate-General had said that non-EU nationals might be given the right to reside in a Member State in which an EU family member lived before the family member acquired the nationality of that country. However, since the UK wants to rule out the jurisdiction of the CJEU, there is a little time to benefit from the upcoming decision.
This post was originally published at Sterling Lawyers.