THE TRANSATLANTIC MAGAZINE
Brexit, Settled Status, US-EU Citizenship and Living in the UK
Oshin Shahiean of OTS Solicitors explains UK Prime Minister Theresa May's proposals on EU Citizens living in the UK, and how this could affect Americans living in the UK with dual US/EU Citizenship.
What is ‘settled status' in the UK?
A “settled status” will grant EU nationals and their families, who have spent five years in the UK, the same rights as British citizens after Brexit. This includes equal rights on healthcare, education, benefits and pensions. It is not clear what the cut-off date should be for EU citizens to qualify for obtaining the status.
How can you apply for ‘settled status’ in the UK?
Under the proposed plans, EU nationals will have to apply through the Home Office for a residency document over a two-year window—an average of 4,100 submissions a day.
They will have to pay around £65 each — generating £195 million.
The right to apply for the new status will apply to family members and partners resident in the UK at the cut-off date, including those “who do not yet have five years’ residence.”
How many EU citizens are eligible for ‘settled status’?
There are an estimated three million EU citizens living in the UK. Those living in the UK lawfully for at least five years will be granted “settled status” and can live, work and claim benefits just as they can now. All EU citizens who move to the UK before the cut-off point will be given “blanket permission” to stay for a period – expected to be up to two years. Children born in the UK to parents from the EU will automatically become British citizens. Irish citizens will not have their rights affected by Brexit and will always be able to live and work in Britain freely.
What does this mean for British citizens living in Europe?
The Government promised:
• Brits will be able to get free healthcare while living or travelling in Europe under a continuation of the EHIC scheme
• Brit pensioners living in Europe will have their pension payments increased every year just as if they were still in the UK
In a 15-page document entitled safeguarding the position of EU citizens living in the UK and UK nationals living in the EU, it has been confirmed that qualifying EU citizens will be able to apply for “settled status” if they have lived in the UK for five years after a “specified date” – which is yet to be confirmed. After this date there will be a “grace period” of up to two years for those already living in the UK, after which they will be able to apply for either temporary residency or settled status.
The grace period will be put in place in order to cope with the volume of demand for permits and avoid a “cliff edge”.
During this time, the Home Office will provide a period of blanket temporary residence permission immediately upon the UK’s exit from the EU – “a generic umbrella of temporary leave applying to all existing lawful EU residents and their families.”
The document explains: “Our priority is to reach agreement on the post-exit position of EU citizens now living in the UK and of UK nationals living in other EU countries. We will put those citizens first, and do all we can to provide reassurance to the EU citizens who have made the UK their home, and likewise for UK nationals who have done the same in countries across the EU.”
Under the proposals, EU citizens who arrived and became resident before the specified date but who do not have five years’ continuous residence at the time of the UK’s exit will be able to apply for temporary status so that they can remain in the UK until they have logged five years’ residency, at which point they can apply for “settled status”.
Those who are working towards settled status can continue to have the same workers’ rights and claim the same benefits as they do now.
One of the key tenets of the proposals is that all EU citizens and their families, regardless of when they arrived, will eventually need to obtain “immigration status” in UK law.
This means they will have to apply to the Home Office for permission to stay, evidenced through a residence document.
The Government says this is so they will be able to “demonstrate to third parties (such as employers or providers of public services) that they have permission to continue to live and work legally in the UK.”
It adds: “Without a residence document, current residents may find it difficult to access the labour market and services.”
Once this settled status is in place, however, those whose residence started before the cut-off date will have “no immigration conditions placed on their residence in the UK, providing they remain resident here.” If they then went on to be absent from the UK for more than two years, however, they could lose that settled status.
The Government has proposed to set up the application process via separate UK legislation in order to provide legal guarantees for EU citizens once the European Court of Justice ceases to have jurisdiction over the UK.
The proposals do not impact the Common Travel Area arrangements between the UK and Ireland, which means that Irish citizens in the UK will not have to apply for protected status.
The Government has also proposed that citizens with professional qualifications obtained in one of the EU27 countries before the UK leaves will continue to have those qualifications recognised once Brexit is formalised.
EU nationals who already have residency cards will have to apply again under the new system. The Government plans to set up the application process before the UK leaves the EU so that those who will be affected can obtain their new status “at their earliest convenience”.
The Government proposal says: “Firstly, UK nationals in the EU must be able to attain a right equivalent to settled status in the country in which they reside. Secondly, they must be able to continue to access benefits and services across the member states akin to the way in which they do now.”
“Currently non-British EU citizens are entitled to be joined in the UK by their non-EU family members – including extended family such as parents – without a financial means test and with minimal fees.
“In contrast, British citizens find that their non-EU family members have to pay much higher visa fees, pay into the NHS and meet a strict income test – that has already led to the separation of many families unable to qualify – and that it is almost impossible to arrange visas for parents or other extended family members.”
“The UK’s stance is that the British courts should oversee the system rather than the European Court of Justice, but the EU27 are concerned that without ECJ oversight, future UK governments may try to water down those agreed rights.
“No doubt there will be compromises on both sides, but a middle ground may be some form of independent arbitration panel formed of judges from the UK and EU.”
Josh Hardies, CBI Deputy Director-General, once said: “Business will welcome these proposals as an important first step. Protecting the rights of EU citizens here and UK citizens abroad is the right priority at the outset of the negotiations, and firms will look forward to an early resolution of this issue.
“Both sides need to provide reassurance for millions of employees, giving certainty for businesses and starting to build real momentum to the negotiations.
“Companies will also expect a low-cost, speedy and simple solution to be put in place for EU citizens to establish their right to settlement in the UK.”
Does Brexit affect dual US/EU citizens?
Those holding dual US/EU citizenships, such as US-Italian or US-Spanish nationals, US-French, and their families will also be affected by Brexit, and it is important that they apply for some form of status in the UK. If they have lived in the UK consistently for five years they are eligible to apply for “settled status” to the Home Office which would allow them to live in the UK and obtain rights similar to those of British citizens, such as healthcare and education. Though many EU nationals have already filled out an 85-page document, they must reapply, including those with dual US/EU nationality once the Government has proposed the new procedure for Settled Status.
Dual US/EU citizens Clients may want to continue to apply for Permanent Residence under EEA regulations as we are still part of EU. The UK Government claim they want to create a “settled Status under UK law”. This, at first glance sounds logical. As the UK withdraws from the EU and the EU law ceases to apply, they need to integrate the status held by some under EU law into the UK law. However, the issue is, they appear to be doing this by creating administrative hurdles.
The policy paper starts by acknowledging the following:
“3) The UK is one of the most tolerant and welcoming places in the world and will remain that way. EU citizens who came to the UK before the EU Referendum, and before the formal Article 50 process for exiting the EU was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here. We recognise the need to honour that expectation. The choice made in the Referendum was about our arrangements going forward, not about unravelling previous commitments.”
It is therefore clear that the Government acknowledges that EEA nationals coming to the UK had a clear and legitimate expectation that they would be allowed to build their lives in the UK.
The issues arise in particular for those who have or by the date of the UK’s formal withdrawal from the EU, will acquire Permanent Residence under the EEA Regulations, by virtue of exercising treaty rights. The problem stems from the fact that the PR is an automatic right, while the settled status the Government is proposing will be granted on application. One of Case studies in the Policy paper actually makes this reference
“Andriana does not need to apply immediately for settled status. She can remain in the UK after exit and continue her activities, during the grace period of blanket permission. However, she must apply to the Home Office for permission to stay before this grace period expires if she intends to carry on living in the UK afterwards.”
Those who arrive after the cut-off date may apply for temporary status so that they may legally live in the UK. After residing in the UK for the minimum of five years they may then apply for settled status. It is therefore imperative that those who may be eligible for Permanent Residence seek legal advice to ensure they have taken every step to secure their Permanent or Settled Status in the UK.
Family members of a dual EU/US national applying for ‘settled status’ before exit may also apply for settled status, on the condition that they, too, are eligible and have an authentic relationship with the eligible EU national applying. If the family member has not met the five-year requirement, they may apply for a residence permit, until they meet it.
For those looking to become British citizens prior to the UK officially withdrawing from Europe, it is necessary to have obtained permanent residence before applying and to ensure they are eligible. Permanent residents may work or study, having obtained the right to live in the UK permanently. It is important, thus, for EU and US/EU dual citizenship holders to then apply for settled status if they wish to remain in the UK and work freely after the UK exits the European Union.
With so much uncertainty in the air, it is well worth making enquiries as to whether you would benefit from obtaining a Permanent Residence Card or waiting to apply for Settled Status.
OTS Solicitors are an award-winning immigration law firm in London and have the experience and expertise to advise and represent both EEA and non-EEA nationals through the UK’s immigration process. We will ensure you are fully informed of the options available to you regarding obtaining a Permanent Residency card and/or applying for Settled Status in the future.
Tel: +44 (0)207 936 9960