Brexit Negotiations – EU Citizens’ Rights in the UK
| Charlotte Nicolas

Brexit Negotiations – EU Citizens’ Rights in the UK

On 17 July 2017, the UK and the EU started the second round of Brexit negotiations. The talks included discussions on Britain’s EU exit bill and citizens’ rights.
In a proposal published on 26 June 2017 the British Prime Minister, Theresa May confirmed that after the UK leaves the European Union, the Government will create new rights in UK law for an estimated 3 million EU citizens residents in the UK before the country’s exit.
Under the proposal, eligibility criteria qualifying EU citizens—those who have been living in the UK for five years or more—will be given settled status or ‘’Indefinite Leave to Remain (ILR)’’ in the UK. Those EU nationals who have already secured a permanent residence card will have to re-apply. This is due to the fact that the new application process will be based on a legal scheme under UK law rather than the current one for certifying the exercise of rights under EU law. Accordingly, some requirements under EU law such as the need for economically inactive EU citizen to have previously held ‘’Comprehensive Sickness Insurance’’ in order to be considered resident would no longer apply.
Mrs May has rejected calls from the EU leaders for a European court to oversee these rights after Brexit.
There are several areas of contention, and the EU leaders would want to look at these very carefully:
Who will qualify for settled status?
  • EU citizens who have been resident in the UK before a specified date and who have completed a period of 5 years continuous residence in the UK before a specified date
  • Those who became resident before the specified date but have not completed 5 years at the time of the UK’s exit will be able to obtain temporary status until they are eligible for settled status
  • Family members outside the UK who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after 5 years.
EU citizens who leave the UK for 2 years or more will lose their settled status, unless they can demonstrate they have strong ties in the UK.
What are the rights of EU citizens with settled status?
  • This status will allow them to reside in any capacity, undertake any lawful activity, access public services and apply for British citizenship if they wish to do so.
  • The EU citizen will continue to have access to UK benefits as a UK national, i.e., right to work, right to healthcare, to pension and to social security benefits.
Whose rights cannot be guaranteed?
  • Current students and those starting courses in the 2017/18 and 2018/19 academic years will continue to be eligible for student support and home fee status for the duration of their course. However, there is no proposal for EU students applying after these dates.
  • Those EU citizens entering the UK after the specified date may be allowed to stay for a temporary period of 2 years and may become eligible to settle permanently depending on their circumstances, but there is no guarantee they will obtain “settled status.”
  • Family members joining a qualifying EU citizen after the UK’s exit will be subject to the same rules as a non-EU citizen joining a British citizen, i.e., meet a strict financial requirement, pay the Immigration Health Surcharge, etc.
What will be the specified /cut-off date?
The cut-off date will be no earlier than 29 March 2017 (the day Article 50 was triggered) and no later than the date of the UK’s withdrawal from the EU.
What about British citizens living in the EU?
The government’s expectation is that the EU will offer reciprocal rights/treatment to Britons living in other EU countries.
The EU has put an offer on the table that they believe is more generous and offers more rights further into the future, than what the UK has proposed. It has said it is prepared to guarantee the full rights that UK nationals have today in perpetuity. (See the European Commission’s "Essential Principles on Citizens' Rights").
What will the EU do after looking at the UK’s proposal? What might the EU’s response mean for UK citizens in the EU? 
The issue of what rights EU citizens living in the UK, and UK citizens living in the EU27 countries, will retain is far from being resolved. The only certainty is that until the UK leaves the EU, EU citizens’ right of free movement will remain unchanged.