Brexit – The Offer to EU Nationals

The Prime Minister’s “fair and serious offer” to grant settled status to the 3 million EU nationals currently living in the UK has been greeted with caution and scepticism by a number of EU leaders at their summit in Brussels.

The British government will set out a detailed negotiating position in writing on Monday 26th June however the main features of the offer are as follows:

Settled Status

The 3 million EU nationals currently living in Britain and exercising “treaty rights” will be permitted to remain and apply for settled status once they have been here for 5 years. EU nationals arriving in Britain after March 2017 (the date that notice was served on the European Union under Article 50) and prior to a “cut-off date” to be agreed in negotiations will also be permitted to remain and apply for settled status after 5 years.

A Cut-Off Date

EU nationals who enter the UK after the agreed cut-off date and prior to the date the UK eventually leaves the EU (likely to be March 2019) will be permitted to remain for 2 years and thereafter will be required to apply for permission to stay under the UK’s new domestic immigration arrangements for EU nationals. This could include, for example, an application for a work permit, entrepreneur status or permission to remain as a dependant family member under new immigration rules.

“Light Touch” Process

The government intends to offer a “light touch” settlement application process for EU nationals, replacing the information and documentation heavy application for permanent residence that currently prevails.

Domestic Jurisdiction

The Prime Minister made clear that enshrining the rights of EU migrants living in the UK in domestic law will be a red line. This means that British Courts, and not the European Court of Justice, will be tasked with enforcing the law.

Potential Areas of Contention

There are a number of unanswered questions that will be subject to negotiation. These include:

The cut-off date

The Prime Minister did not clarify from when EU citizens will cease to automatically qualify for settled status in the UK. She set a range: March 29th 2017 (Article 50 day) to March 29th 2019 (the likely Brexit day). The date will be agreed as part of the Brexit negotiation process.

European Court of Justice

The EUs position is that the European Court of Justice should retain “full jurisdiction” over EU national rights. This will be a contentious issue in the Brexit negotiations as “bringing back control” of laws was a key tenet of the campaign to leave the EU.

Spouses and families

At present EU nationals can bring non-EU spouses and family members to the UK more easily than British nationals because of the tough criteria contained within domestic immigration rules, including minimum earnings thresholds. It is unclear whether such preferential arrangements for family members of EU nationals will continue to apply. The EU is unlikely to accept that the requirements of the UK’s immigration rules offer sufficient protections to family members of EU citizens.

Benefits and Welfare

The Prime Minister’s offer is to treat EU citizens living in the UK equally with UK citizens but it is unknown if EU citizens will continue to be able to send benefits back to children not living in the UK.

 Reciprocity

The offer is dependent upon a similar agreement being reached regarding the status of British nationals living across the European Union. Mrs May says reciprocity is “vital” and the British government will not make a unilateral offer to EU citizens. This leaves open the question of what will happen if the Brexit talks break down.