Brexit: Citizens’ Rights

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The UK is set to leave the European Union (EU) on 30 March 2019. The draft Withdrawal Agreement (“the agreement”) of 29 March 2018 contains arrangements for securing rights for non-UK EU nationals residing in the UK (“EU nationals”) and UK nationals residing in other EU Member States (“UK nationals”). This blog post outlines the arrangements for citizens’ rights and highlights some areas where concerns have been raised.

Non-UK EU nationals in the UK

Although estimates differ due to differences in definitions and methodologies, there appear to be around 3.8 million EU nationals living in the UK –  approximately 6% of the total population.

Under the agreement, an EU national will be able to apply for ‘settled status’ from 30 March 2019. This would allow them to continue residing in the UK. They would also retain their right to work and to access benefits, pensions and healthcare.

Settled status lasts indefinitely and does not have to be renewed. However, it will terminate if someone leaves the UK for five consecutive years. Following this, they would be treated as a third country national. Their right to enter the country may then be limited or denied due to stricter immigration controls.

The Home Office have indicated that they aim to make the application process as ‘streamlined and user friendly’ as possible. Their Statement of Intent explains that the applicant will have to complete an online application form, provide proof of identification and a passport-style photo, and declare any criminal convictions.

The applicant must also:

  • be an EU citizen (rights for EEA citizens are still being negotiated).
  • prove continuous residence in the UK for the past five years.
  • have started living in the UK prior to 31 December 2020.

A ‘close’ non-EU national family member of a EU national will also be able to apply. This includes children, spouses or civil partners, parents and dependent grandparents. For all except children, the relationship must have begun before 31 December 2020.

Those who have not lived in the UK for five years prior to 31 December 2020 can apply for ‘pre-settled status’. This can be converted to settled status (free of charge) once five years of continuous residence is reached.

There will be a fee of £65 for adults and £32.50 for children under 16. No residence card will be issued. Instead, the applicant can request an online code. Those who already have a permanent residence document under current EU rules can exchange this for settled status free of charge. The deadline for applications will be 30 June 2021.

The Home Office has started to trial this process. Testing began on 28 August 2018 with around 4,000 NHS workers in Liverpool taking part.

The scheme is still subject to approval by Parliament. A UK Government White Paper explains that the scheme will largely be put into effect by changes to secondary legislation (UK Immigration Rules), but that elements will also be dealt with in the EU (Withdrawal Agreement) Bill.

UK nationals in other EU Member States

Although estimates differ, there appear to be around 1.2 million UK nationals living in other EU Member States (“the EU27”).

Under the agreement, all UK nationals and their family members will be able to continue living in their Member State of residence, with access to pensions, benefits and healthcare.

Once five years of continued residence in the Member State is completed, they will either be able to apply for a residence document or obtain a new status (depending on the approach that each of the EU27 decides to take). Once this new status is granted, they will be able to leave their Member State of residence for up to 5 years without losing their right to return.

The implementation period for UK nationals is due to expire on the same date as the UK’s (31 December 2020). Provided that the UK national has moved to the Member State before this date, they will be able to continue residing there.

There is currently little information about how each Member State plans to implement the rules.

Brexit means that UK nationals will lose their EU citizenship and hence the right to free movement, including the right to work and start a business in another Member State. This is a key point as, although UK nationals will retain rights in their Member State of residence, they will not automatically retain similar rights in other Member States.

Figure 1: Estimates of the number of British citizens living in the EU by country – 2017

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Source: Office for National Statistics – Article: Living abroad: British residents living in the EU: April 2018 (note that the graph excludes UK nationals living in Ireland)

Concerns with the proposed Withdrawal Agreement

In its recent report, ‘The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens’,  the Commons Select Committee on Exiting the European Union argued that:

  • The online system may be unable to cope with the large volume of applications.
  • The lack of a physical document may make it difficult for people to prove their immigration status in the future – the comparison is made with the Windrush scandal.
  • Those who may not know that they need to register, e.g. children, will not be legally protected.
  • There needs to be clear guidance on the bar to obtaining settled status on the grounds of criminality.

The3Million campaign group has expressed fears that mistakes will be made by the Home Office when processing applications.

The pressure group British in Europe has expressed concern over the lack of information from the EU27 about how UK nationals’ residency will be secured.  It has called for clarification on this point.

What could happen under a ‘No-deal’ Brexit?

Dominic Raab, the Secretary of State for Exiting the European Union, has said that EU nationals will not be ‘turfed out’ if there is no deal and has pledged that the government will act quickly to protect EU citizens’ rights. It is not yet clear how the UK would do this, although further information is likely to be included in future UK ‘technical notifications’ providing advice about a no-deal Brexit.

The EU has indicated that, if there is no deal, ‘there would be no specific arrangement in place for EU citizens in the United Kingdom, or for UK citizens in the European Union.

EU officials have, however, expressed interest in creating contingency plans to protect citizens’ rights, but it is not clear what these plans will cover.  It may be that UK protections will be mirrored by other Member States (see for example the French government’s proposals). However, this is not guaranteed and levels of protection may be asymmetrical.

Calls have been made to ‘ring-fence’ citizens’ rights so that they would survive a no-deal Brexit. However, negotiators currently remain unwilling to finalise parts of the agreement until all the talks are completed.

Nellie Ngai, graduate work placement in SPICe Research