Virginia, US
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| Fragomen

UK Government Publishes European Citizens’ Rights Policy Paper

The UK government has released its long-awaited Policy Paper on its proposed plans for managing the immigration status of European nationals in the UK, post the UK’s departure from the European Union (“EU”.) 
Contrary to expectations, they have indicated that existing residence documents obtained by European nationals and their family members under the current regulations will be deemed invalid once the UK leaves the EU. 
The government has confirmed that a new ‘modernised … smooth and simple’ application process shall be put into place post the UK’s departure from the EU, which we anticipate would oblige all European nationals resident in the UK to register with the UK government within a two-year period. This legal scheme shall operate separately to the current system in place to certify the rights of European nationals in the UK. 
The government has indicated that the eligibility criteria shall be ‘tailored’ accordingly, with a given example of the removal of the requirement for comprehensive sickness insurance for economically inactive European nationals. 
The documentation issued in response to an approved application under the new system will confirm not only the holder’s right to reside but also to work in the UK.
The government will not oblige European nationals currently present in the UK to complete this new application process before the UK leaves the EU but plan to make the new system available before the date of formal separation to allow those affected to apply as soon as they wish.
The UK government has stressed that Irish nationals will not be impacted by this proposal, given that the Ireland Act 1949 regulates the relationship between the two countries and predates both parties’ membership in the EU.
Whilst there is no immediate change to the immigration landscape for European nationals in the UK, this announcement will doubtless cause further distress and confusion amongst that population. 
The content of this Paper is only a proposal at this stage. We anticipate it will be subject to much negotiation and leaves the UK government open to political and legal challenge from a range of parties, including the European Commission, pressure groups and European nationals themselves. 
Since the EU referendum result, the UK government has been at pains to assert their view that any legal wrangling regarding the UK’s treatment of European nationals post the UK’s departure from the EU will rest with the UK courts. The European Commission is unlikely to accept that, though the UK courts themselves have an established track record of deciding against the government when they attempt to impose retrospective immigration policies. One such example was the successful challenge brought against the government’s decision to change the settlement period of the Highly Skilled Migrants Programme.