Latest Government proposals for EEA Nationals

According to the Government’s recent Proposal which was presented to Parliament in June 2017, the rights that EU/EEA nationals have in the UK and the process they need to follow will depend on when they entered the UK in relation to the "Specified Date". The Government has stated that the Specified Date will be either no earlier than 29 March 2017, or no later than the date of the UK’s withdrawal from the EU.

To avoid a stampede, a "grace period" from the date of exit, which is expected to be two years, will be introduced during which EU/EEA nationals and their family members can regularise their status in the UK by applying for the relevant documentation.

According to the Proposal, current documentation such as Registration Certificates, Residence Cards and Permanent Residence cards, will not count post-Brexit, and new applications will apparently need to be made. During the grace period, the right to reside, study and work in the UK will remain in place for those who entered the UK before the Specified Date. The intention of this is to "avoid a cliff-edge".

However, once this Residence documentation has been obtained, the blanket permission during the grace period will automatically expire. The result of this is that failure to obtain documentation during this grace period will result in the individual no longer having permission to remain in the UK.

It is therefore vital that those wishing to remain in the UK obtain the relevant documentation in time, as Free Movement Rights under current EU law will automatically end and new UK laws will need to be put in place. At the point of Brexit, EU citizens and their families already lawfully in the UK will be able to stay here. However, they will need to formalise their immigration status in UK law by applying for a Residence document. The method of this application is unfortunately unclear, and we will need to await further information in this regard.

For those EU citizens and their families with five or more years’ continuous residence in the UK, by the date of Brexit, or by the end of the grace period, they should be eligible to be granted Permanent Residence. This is provided they have proof of their residence in the UK. The Government is yet to set out what it will require by way of proof, however, it is likely to be along the lines of the current position.

EU citizens and their families with less than five years’ continuous residence by the date of Brexit or by the end of the grace period, should be allowed to stay in the UK until they have been resident here for the five year period, however, it is likely they will need to apply for permission to remain. There is the potential they may be subject to additional criteria to be successful in this application, and this position is also unclear.

If the Specified Date is earlier than the date of withdrawal from the EU, and EU citizens arrive between those two dates, then free movement rights might exist up to the point the UK leaves the EU. This is not guaranteed and the terms for this grace period, during which they will need to apply for leave to remain, have not yet been drawn up. It is thought this is likely to be a Points Based System, similar to the Tier 2, 4, 5 System in place, so watch this space.

Surprisingly, those individuals currently holding Permanent Residence status will not automatically receive a settled status document without the need for an application. This does seem contradictory, as prior to the Proposal, the Government was encouraging those eligible to apply for Permanent Residence, to do so. However, the Government is now seeking to make the application process for those holding Permanent Residence already as "streamlined as possible". This may mean a voluntary scheme to enable eligible EU citizens to apply for the necessary residence document pre-Brexit.   The details of which, should be available "in due course".

What is clear from the Proposal is that whilst the Government has intended to set out the position, the practicality of this and the timing thereof, all remain unclear.