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20th December 2017

Brexit: An update on citizens’ rights

Since the referendum on 23 June 2016, in which 51.9% voted to leave the EU, one of the main areas of focus for Brexit negotiations has been immigration including what will happen to the rights of United Kingdom (UK) and European Union (EU) expat citizens.  Understandably this has been an emotive subject, both for individuals affected as well as employers whose businesses rely heavily on EU workers.  As such, since the triggering of Article 50 on 29 March 2017, we have been following the negotiations closely in order to be able to advise our employer clients and contacts on the most up to date position as it becomes available.
On 8 December 2017 a Joint Report was published setting out the progress that has been made during the first phase of negotiations between the EU and the UK in relation to Brexit. The report confirms that the parties have reached agreement in principle on three key “divorce” areas, one of which relates to what will happen to the rights of UK citizens living elsewhere in the EU and also to EU citizens residing in the UK after Brexit.

The Joint Report has confirmed that, in respect of citizens’ rights, the overall objective of the Withdrawal Agreement (the agreement governing the terms of the UK’s exit from the EU) will be to provide reciprocal protection for EU and UK citizens. The aim will be to enable those who have exercised free movement rights before the date of the UK's withdrawal from the EU to continue to do so. The intention is therefore that the rights and status of EU citizens living lawfully in the UK and UK citizens residing in an EU Member State before the UK leaves the EU will remain the same after Brexit.

The key issues that have been agreed in respect of EU citizens living in the UK (estimated at 3.2 million) are set out below:

  • Those who have been continuously and lawfully living here for 5 years by 29 March 2019 will be able to apply for ‘settled status’ to enable them to stay indefinitely and go on to apply for British citizenship.
  • Those who arrive in the UK before 29 March 2019, but have not been lawfully living here for 5 years when the UK leaves the EU, will be able to apply to stay until they have been here for 5 years, following which they will also be able to apply for settled status.
  • Family members who are living with, or join, EU citizens in the UK by 29 March 2019 will be able to apply for settled status after 5 years in the UK.
  • Close family members (spouses, civil/unmarried partners, dependent children/grandchildren and dependent parents/grandparents) will be able to join EU citizens in the UK after Brexit, provided that their relationship existed on 29 March 2019 and continues to exist when they wish to come to the UK.
  • EU Citizens will be able to be absent from the UK for up to 5 years without losing their right to return.
  • EU citizens with settled status or temporary permission to stay will continue to have the same access as they currently do to healthcare, pensions and other benefits.
  • For those who arrive in the UK after 29 March 2019, it is intended that there will be a transition phase of up to three years during which EU citizens will be able to live, work and study in the UK subject to a registration system. How this transition phase will work, including exactly how long it might last, is still subject to negotiations and the details of the immigration arrangements that will apply, both during this period and after it ends, have not yet been agreed.
The agreement that has been reached in respect of UK nationals residing in the EU (estimated at 2 million) is as follows:

  • UK nationals, as well as their family members, who are lawfully residing in an EU Member State by 29 March 2019, will be able to continue to reside in that Member State.
  • Close family members (spouses, civil/unmarried partners, dependent children/grandchildren and dependent parents/grandparents) will be able to join UK nationals in their Member State of residence after the UK leaves the EU, provided that the relationship existed on 29 March 2019 and continues to exist when they wish to move to join their UK national family member.
  • EU Member States may require UK nationals and their family members to apply to obtain a status to confirm their right of residence and/or obtain a residency document.
  • UK nationals and their family members will be able to be absent from their Member State of residence for up to 5 years without losing their right to return.
  • UK nationals and their eligible family members will continue to have the same access as they currently do to healthcare, pensions and other benefits.
  • Those UK nationals who move to a Member State after the UK’s withdrawal from the EU on 29 March 2019, will also be subject to the transition referred to above. Again, the details of the immigration arrangements that will apply during this period have not yet been agreed.
Further information on how these agreed principles will take effect in practice is set out on a Questions and Answers (Q&A) document which was released by the European Commission on 12 December 2017. Amongst other information, the Q&A document provides various case studies and responds to questions relating to the rights of EU and UK citizens and their family members as well as the administrative procedures which will need to be followed to protect and enforce such rights.

The Q&A document can be found here.

The Q&A document offers an interpretation of the current understanding of the agreement between the parties and provides a certain degree of security to UK and EU expat citizens. However, it is important to note that, whilst the conclusions in the Joint Report following phase one of negotiations will be used as a base for the Withdrawal Agreement, there may still be amendments following the second phase of negotiations. The European Commission has therefore stressed that the Q&A document has been produced for information purposes only and, whilst a good indication, should not be taken as constituting the final agreement on the issue.

The UK Government has also updated its previous guidance and case studies on citizens’ rights to reflect the agreement reached between the parties on 8 December 2017. This guidance can be found here.

For further advice on the issues raised in this article and how it may impact on your business, please contact Gemma Hill or Lynne Adams.
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