EU citizens’ rights after Brexit – the latest state of affairs
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Marc Bloomfield
In June this year, the Home Office published its most detailed document yet setting out EU citizens’ rights after Brexit.
1The government committed to a ‘straightforward, user-friendly system for EU citizens and their family members’ (page 4) and confirmed that it will be ‘looking to grant, not for reasons to refuse’ (page 2), will ‘work with applicants to help them avoid any errors or omissions’, ‘engage with applicants and give them a reasonable opportunity to submit supplementary evidence’ and apply a principle of evidential flexibility ‘to minimise administrative burdens’ (page 21, para 5.15). Automated checks of HMRC and Department for Work and Pensions records will assist applicants to establish their continuous residence, keeping the documentary evidence the applicant is required to provide to a minimum.
2The deadline for applications under the EU Settlement Scheme will be 30 June 2021.
3In line with the draft Withdrawal Agreement with the European Union (19 March 2018), the EU Settlement Scheme will mean that:
EU citizens and their family members who, by 31 December 2020,1The end of the implementation period. have been continuously resident in the UK for five years will be eligible for ‘settled status’, enabling them to stay indefinitely. (This means it will not have been necessary to have exercised treaty rights during that period to qualify for residence.)
EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for ‘pre-settled status’, enabling them to stay until they have reached the five-year threshold. Thereafter, they can apply for settled status.
All applications will be subjected to checks against UK criminality and security databases and – where appropriate – against overseas criminal records checks. If there is ‘serious or persistent criminality’ or there are ‘other public policy reasons’ (page 12, para 3.2), applications will be refused.
There will be a right to administrative review to challenge the refusal of applications made under the EU Settlement Scheme. The government has also expressed its intention to give those applying under the scheme from 30 March 2019 a statutory right of appeal.
Applications will cost £65 for those aged 16 or over and £32.50 for under-16s. Where an application for ‘pre-settled status’ has previously been made, no new fee is payable for an application for settled status. Where persons already hold permanent residence documents, these will be exchanged for confirmation of settled status at no extra cost.
Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, or dependent parent or grandparent) living overseas will be able to join an EU citizen resident here after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected in certain circumstances.
The Statement of intent has met many concerns regarding the situation of EU citizens and their family members, including in relation to future family reunion and the situation of disabled EU citizens and stay-at-home parents, and has come some way during the negotiations with the EU,2See comparisons of EU/UK positions on citizens’ rights. which is to be commended.
It has not, however, specified the post-Brexit position of individuals with derivative residence rights as a result of EC law3Pursuant to the Court of Justice of the European Union (CJEU) judgments such as Harrow LBC v Ibrahim Case C-310/08, 23 February 2010, Teixeira v Lambeth LBC Case C-480/08, 23 February 2010, Chen and others v Secretary of State for the Home Department Case C-200/02, 19 October 2004 and Ruiz Zambrano v Office national de l’emploi Case C-34/09, 8 March 2011. (such as Zambrano carers, ie, non-EU citizens who are primary carers of British citizens), which, the government’s Statement of intent says, will be set out within post-Brexit immigration rules. I believe that to meaningfully protect the right to private and family lives of persons with derivative rights and their family members, the government should provide a route to settlement along the same lines as covered by the EU Settlement Scheme for all those who hold derivative rights4As per the jurisprudence of the CJEU or as per the UK’s practice and/or case law in cases where this goes beyond current CJEU jurisprudence. at any time prior to and/or on 31 December 2020.5It is also notable that for much of the negotiations with the EU, the UK government was committed to treating some categories of derivative rights holders (namely children of former EU citizen workers who are in education in the UK) as ‘independent right holders eligible for permanent residence’ (see the comparisons of EU/UK positions on citizens’ rights of 31 August 2017 and earlier).
On 28 August 2018, the government opened a private pilot scheme for EU settlement applications and published its first guidance for Home Office staff, EU Settlement Scheme - EU citizens and their family members (v1.0), on how to consider such applications. The private pilot is open to eligible applicants in the North West, covering some universities and NHS trusts.6Adam Withnall, 'EU citizens make first applications to remain in UK after Brexit', Independent, 28 August 2018. The EU Settlement Scheme will open fully by March 2019.
 
1     The end of the implementation period. »
3     Pursuant to the Court of Justice of the European Union (CJEU) judgments such as Harrow LBC v Ibrahim Case C-310/08, 23 February 2010, Teixeira v Lambeth LBC Case C-480/08, 23 February 2010, Chen and others v Secretary of State for the Home Department Case C-200/02, 19 October 2004 and Ruiz Zambrano v Office national de l’emploi Case C-34/09, 8 March 2011»
4     As per the jurisprudence of the CJEU or as per the UK’s practice and/or case law in cases where this goes beyond current CJEU jurisprudence. »
5     It is also notable that for much of the negotiations with the EU, the UK government was committed to treating some categories of derivative rights holders (namely children of former EU citizen workers who are in education in the UK) as ‘independent right holders eligible for permanent residence’ (see the comparisons of EU/UK positions on citizens’ rights of 31 August 2017 and earlier). »
6     Adam Withnall, 'EU citizens make first applications to remain in UK after Brexit', Independent, 28 August 2018. »

About the author(s)

Jan Doerfel
Jan Doerfel is an accredited direct public access sole practitioner barrister.