New guidelines from the Home Office for EU citizens in the UK

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
4 July 2017

The Home Office updated its guidance for EU citizens living in the UK on 30th June 2017, as part of its ‘Status of EU citizens in the UK: what you need to know’ page. On this page, the Home Office outlines their ‘offer’ for EU citizens who are currently living in the UK, as well as those who may move to Britain after the date the UK officially leaves the EU, 29 March 2019.

If you’re an EU citizen and have lived in the UK for five years

The UK government states it intends to launch a scheme to enable EU nationals to commence their application for settled status before the UK leaves the EU. With regards to EU citizens currently living in the UK, the Home Office has said that those who have lived in the UK for five continuous years can apply for ‘settled status’, thereby securing indefinite stay. Those EU nationals who have been residing in the UK for less than five years at the time of Brexit will have to wait to apply for settled status, until they meet the requirements of those living continuously for five years.

The government page also discusses the application process for a residence document. It states that once Britain leaves the EU, it will be required under new UK law for all EU citizens and their dependents who are living in the UK to submit an application to the Home Office for permission to stay. The government plans to implement a ‘streamlined and user-friendly’ application process in 2018 for a residence document demonstrating settled status.

If you’re an EU citizen without relevant documentation

The Home Office clarify that EU citizens living in the UK without the relevant documentation under the new scheme at the time when the UK officially leaves the EU will not be forced to leave the UK. This is because there will be a ‘period of permission’ to remain in the UK, which covers every EU citizen and grants them time to apply. The Home Office have titled this a ‘grace period’, which will be a fixed period of time that is yet to be decided. After the ‘grace period’ has ended, EU citizens who still don’t have the relevant documentation under the new scheme will no longer be legally permitted to remain in the UK.

If you’re already got permanent residence status

The Home Office also discusses the validity of permanent residence status. Since permanent residence status is under EU law and is tied to the UK being a member of the EU, it will lose its validity after Brexit. The settled status application outlined above is not part of a permanent residence application, and therefore a document pre-Brexit confirming permanent residence is not sufficient for an EU national to remain in the UK; a new application for settled status is required.
If you’re an EU national and arrive after the “cut-off date”
The UK government also provides details for EU nationals who arrive after the ‘cut-off date’. These people are advised to apply for permission to remain in the UK after it has left the European Union, under immigration laws that are to be decided in the Brexit negotiations currently occurring in Brussels. The ‘cut-off date’ will also be agreed as part of the Brexit negotiations, though the government confirms it will be between the date that Article 50 was triggered on 29 March 2017 and the date the UK officially leaves the EU two years later, on 29 March 2019.

What is the guidance for employees / employers?

Furthermore, the government guidance addresses the point of UK employers and EU citizen employees. It states that after Brexit, EU citizens will be required to apply for a document which verifies their legal permission to work in the UK. The government also adds that they will ‘ensure businesses and communities are given the opportunity to contribute their views on this’.

The Policy Paper

The UK government has also made available its policy paper, which it published on 26 June 2017 and is entitled ‘The United Kingdom’s exit from the European Union: safeguarding the position of EU citizens living in the UK and UK national living in the EU’. In this paper, the government states that its ‘first priority’ is to ‘reach agreement on the post-exit position of EU citizens now living in the UK and of UK nationals living in other EU countries’.
Indeed, the proposed policy paper dedicates space to emphasising its intent to protect rights for EU nationals living in the UK, especially the need to honour the expectation of those who came to Britain before Brexit who were intending to permanently settle. To this effect, the Home Office states, ‘The choice made in the Referendum was about our arrangements going forward, not about unravelling previous commitments’. The government goes on to emphasise that it has every intention of remaining ‘one of the most tolerant and welcoming places in the world’, emphasising that EU nationals are ‘valued members’ of British communities.

The policy paper then lists the principles upon which the government will treat EU citizens in the UK. These include the assertion that new rights under UK law will be created for EU nationals residing in the UK, as the European Court of Justice will no longer have jurisdiction in the UK. Moreover, EU citizens will be required to apply for residence status, though the paper ensures time will be plentiful as ‘there will be no cliff-edge at the point of the UK’s withdrawal from the EU’.

The Home Office also outlines its intentions regarding benefits in the policy paper. It clarifies that EU citizens with settled status will continue to have access to UK benefits on the same basis as a comparable UK national under domestic law; the UK will continue ‘to export and uprate the UK State Pension within the EU; the government will seek to protect the current healthcare arrangements under EU regulations; and the government will intend to continue the EHIC scheme of free or reduced health care during temporary stay in EU countries.

The policy paper summary ends by emphasising that, though freedom of movement will end with Brexit, migration will continue to be welcomed; ‘the UK will remain a hub for international talent’.