The status of EU citizens in the UK after Brexit

While the UK remains in the European Union until 29 March 2019 it is bound by EU law, including freedom of movement. After Brexit, the UK will determine its own immigration rules and requirements for migration from the EU, including the status of EU citizens who have been residing in the UK prior to Brexit.

Here we explain the basics of ‘permanent residence’ and ‘settled status’ for European Economic Area (EEA) nationals in the UK. What follows is an understanding of the current proposals for this system, with a reminder that ‘nothing is agreed until everything is agreed’.

Permanent residence

EEA nationals acquire an automatic right of permanent residence in host members states in which they have legally resided for a continuous five-year period. This status is only open to citizens of EEA member states and eligible family members, including non-EEA family.

The right to permanent residence comes from Directive 2004/38, the Citizens’ Rights Directive (also referred to as the Free Movement Directive). Free movement and the right to permanent residence are implemented in domestic UK immigration law in the Immigration (European Economic Area) Regulations 2016.

There is no need for EEA nationals to apply for permanent residence in the UK, as it is an automatic right and there is no fee required to obtain the status. EEA nationals may wish to apply for a permanent residence document which confirms their status, but this document does not itself confer status. Some EEA member states require EEA nationals exercising their free movement rights to obtain a registration certificate. There is no such requirement in the UK.

To acquire permanent residence in another EEA member state, an EEA national must have lawfully resided there for a continuous five-year period. This means that an EEA national must be exercising their rights under the Treaty on the Functioning of the European Union as a qualified person under free movement – this could be as a worker, self-employed person, self-sufficient person or student, or be an eligible dependent. For those not working or who are self-employed, there is also a requirement to hold comprehensive sickness insurance.

The continuous five-year period is not affected by temporary absences not exceeding six months per year and other exceptions found in Article 16(3) of the Citizens Directive and regulation 3 of the EEA Regulations.

Family members

Eligible family members (including registered partners) of qualified persons are given the same rights of entry and residence to their family member’s host state. These rights are accorded regardless of their country of citizenship, meaning that non-EEA nationals who are eligible family members of EEA-nationals can benefit from free movement. For example, a Spanish citizen who moves to the UK under free movement can bring an eligible family member from Australia (a non-EEA country), who will be accorded the same rights of entry and residence.

However, non-EEA family members of British citizens cannot (with very limited exceptions) avail themselves of free movements rights in the UK, as their British citizen sponsor is not themselves exercising treaty rights (they haven’t left their home state). For example, the Australian spouse of a British citizen who moves to the UK to reside does so under UK immigration law, not free movement, as their British spouse has not left their home state and therefore is not exercising free movement rights.

Eligible family members are outlined in Article 2(2) of the Citizens Directive and regulation 7 of the EEA Regulations. These include:

  • a spouse or registered partner
  • children or grandchildren of either the EEA national or their spouse/partner, who are either under 21 or dependent
  • parents or grandparents of either the EEA national or their spouse/partner, who are dependent

Settled and pre-settled status

Following Brexit, free movement will continue until the end of the transition period, on 31 December 2020. After that, the UK Government has proposed a ‘settled status’ and ‘pre-settled status’ scheme to regularise the immigration status of EU nationals and their family members who are lawfully residing in the UK, as per their free movement rights. The Home Office stated that it intends settled and pre-settled status to be open to EEA and Swiss nationals. This will allow them to continue living in the UK after the end of the transition period, if a withdrawal agreement is reached.

Settled status is available to those who have accrued five years continuous residence in the UK prior to 31 December 2020. Those who moved to the UK prior to 31 December 2020 but who have not yet lived in the UK for five years may be eligible for pre-settled status.

Settled status is not the same as permanent residence. It’s not an automatic right but rather a status that EU nationals will need to apply for and be granted. EU citizens who fail to apply for settled status before the deadline may no longer have a legal right to live in the UK.

Applications for the settled status scheme will be fully open by March 2019 and the deadline to apply for settled status is 30 June 2021. Applicants can apply online and will need to prove their identity and continuous five-year residence in the UK (or less for pre-settled status). Criminal background checks will also be conducted for applicants over 18.

The following non-EU family members will be eligible for settled status:

  • Spouses, civil partners and unmarried partners (with residence cards)
  • Children, grandchildren or great-grandchildren under 21
  • Children over 21 who are dependent
  • Parents, grandparents or great-grandparents who are dependent
  • Dependent relatives who hold a residence card

The fee to apply for settled status is £65, and £32.50 for those under 16. There is no application fee for those who already have a valid permanent residence document (the document costs £65 per person). Permanent residence documents will no longer be valid after 31 December 2020.

Home Office guidance

The Home Office stated that: “as a matter of domestic policy, we have decided that the main requirement for eligibility under the settlement scheme will be continuous residence in the UK. Applicants will not need to demonstrate that they met the relevant requirements in the Free Movement Directive as to permitted activity.”

Applicants are also not required to have comprehensive sickness insurance nor prove that they have held it while exercising treaty rights. The citizens’ rights provisions in the Draft Withdrawal Agreement make it clear that lawful residence applies to those who were exercising their free movement rights under EU law. It appears from the available information that the Home Office has chosen to relax these requirements under the settled status scheme.

Those with settled or pre-settled status will have access to the same rights and benefits they were entitled to under free movement. They will also be entitled to leave the UK for up to five years before losing their settled status.

 

Further reading

Brexit Unknowns (update), House of Commons Library.

What if there’s no Brexit deal, House of Commons Library.

Settled and pre-settled status for EU citizens and their families’, GOV.UK.

Existing UK residence documents for EU citizens, GOV.UK.

 

Hannah Wilkins is an Immigration and Asylum Researcher at the House of Commons Library.