Brexit: Protected Rights for EU Citizens in the UK

The continued extensive reporting of a potential no-deal Brexit has caused worry among UK and EU nationals living in the EU and the UK respectively. The UK Secretary of State has sought to reassure EU nationals that they will not be asked to leave the UK, even if no withdrawal agreement can be reached by 29 March 2019.

Ongoing Negotiations
The UK’s negotiations with the EU are continuing. After earlier talks failed to yield an agreement, Prime Minister May made a public statement on 21 September 2018 that the rights of EU citizens living in the UK would be protected in the event of no deal. What remains to be confirmed is if in the event of no deal the transition period will be honored in full, with free-movement rights recognized up to 1 January 2021, or if there will be differentiation between EU nationals residing in the UK by 29 March 2019 and those arriving after that date.

Elsewhere, the UK and Norway have agreed to put in place a comprehensive citizens’ rights agreement. Norwegian Prime Minister Erna Solberg added that the two countries were “very close” to agreeing on a deal to mirror any Brexit deal that is concluded. Prime Minister May commented that “people from the European Economic Area, Norwegian citizens, and those others who are living in the UK, and who have made their life choice to be in the UK” will be able to stay.

Current residency rights for British citizens in the EU are expected to apply until December 2020; however, those rights could change in March 2019 if Britain leaves the EU without an agreement. The UK government is meanwhile urging UK citizens living in the EU without registration documents to take action to guarantee their post-Brexit residence rights.

The Settlement Scheme Is Now Up and Running
The UK’s settlement scheme is in force and the second phase of testing select applicant groups concluded in December 2018. EU citizens working at 12 National Health Service trusts and students and staff from three Liverpool universities took part in the first managed live trial. The Home Office has published the results of testing in the 1,053 trialed cases, which appear to confirm a short, simple, and user-friendly system.

The evidential requirements appear to have been light, with 85% of applicants not having to provide additional evidence. Decisions were made solely on automated checks against Her Majesty’s Revenue and Customs data or through applicants’ existing permanent status (in 93 cases). The remaining 15% of applicants provided additional evidence to demonstrate their residence. Nearly two thirds of those had to provide additional evidence for part of their residence, with the rest of the time demonstrated through automated checks. Two thirds of applicants voluntarily provided detailed feedback, which 94% agreed (strongly or moderately) that the application process was easy to complete and 3.5% neither agreed nor disagreed.

The Home Office believes that improvements made through the testing phases will mean that the system operates smoothly once it opens to EU applicants in 2019.

The Future UK Immigration Landscape
We await details of the immigration system post-Brexit to be formalized in a future White Paper and an Immigration Bill that we understand will be consistent with the UK government’s intention to end free movement in the UK. The UK government has endorsed the view of the Migration Advisory Committee that the post-Brexit system should not distinguish between EU and non-EU nationals, save as may be required by the negotiation outcomes.

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