EEA nationals and British citizens living abroad have been waiting with baited breath to find out what the impact of Brexit will have on their immigration status. Although the election results may have come as a surprise to many, the fact that the Queen’s Speech included the proposal of Bills relating to Brexit was inevitable.

One of these proposed Bills is the Immigration Bill. It is worth noting that at this stage the proposed Immigration Bill is merely a proposal, however, it gives a good indication as to Theresa May’s intentions for post Brexit immigration.

The overarching proposals of the new Immigration Bill will be to:

  • Allow for the repeal of EU law on immigration, primarily free movement which will otherwise be presevered and converted into UK law by the Repeal Bill; and
  • Make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU

Northern Ireland and Ireland

Under current law there are no passport controls between Ireland and the UK and people of Northern Ireland are able to identify (and hold citizenship) as British or Irish or both. The proposals do not intend to change any of this.

EU Citizens in the UK

The proposals make clear that while the UK remains in the EU all rights that EU nationals enjoy will remain the same.

The new proposals are to remove the rights for EU nationals currently enshrined in EU law. There will be new rights for EU nationals under new UK law. (Our EU partners are not happy with this as this means that there will be no jurisdiction for the EU courts to decide on the rights of EU nationals living in the UK).

It is worth noting that that the new rights will be for EU citizens who are resident in the UK before the UK’s exit from the EU.

Qualifying EU citizens will have to apply for ‘settled status’. The application process will be a separate legal scheme, in UK law, rather the current one certifying rights under EU law. This means that EU citizens who have already been granted ‘permanent residency’ (under EU law) will still be required to apply for new ‘settled status’ under UK law.

Settled status will not give the same rights British citizenship, but EU nationals with settled status can after 6 years’ residence apply for citizenship.

In order to qualify for ‘settled status’ EU citizens will need to be:

  • currently resident in the UK;
  • have been resident before a specified date (which has not yet been decided);
  • have completed a period of five years continuous residence in the UK as a qualified person before they apply for ‘settled status’.

Those EU citizens who are resident before the specified date but have not completed a period of five years continuous residence in the UK will be able to apply for temporary status until they have acquired the five years, after which they will be able to apply for ‘settled status’.

Those EU citizens who arrived after the specified date will be allowed to remain in the UK for a temporary period and may become eligible to settle the permanently depending on their circumstances. There is no guidance on what circumstances would be considered.

Rights of Family Dependants

Family dependants who join a EU citizen with ‘settled status’ before the UK’s exit from the EU will be able to apply for settled status after 5 years. This applies even when the 5 years falls after the UK’s exit.

Family dependants joining a EU citizen with ‘settled status’ after the UK’s departure from the EU will be subject to the same rules of those non EU citizens joining a British citizen currently.

The ‘Specified Date’

There is no clear indication at this point what the specified date will be. The proposals state that it will be no earlier than 29 March 2017 and no later than the date of the UK’s exit from the EU, which must currently take effect by 29 March 2019.

EU Citizens who hold ‘Permanent Residency’

The proposals do offer a small glimmer of light for those EU citizens who have already been granted permanent residency. There is an intention to streamline those applications for settled status for EU citizens who have already been granted permanent residency. However, the proposals are clear that EU citizens resident in the UK will need to obtain ‘settled status’ to carry on living in the UK lawfully.

It is very early stages for this Bill. Jean-Claude Juncker and Angela Merkel have already sounded their disappointment at Theresa May’s post election Brexit proposals for EU nationals living in the UK. This Bill also still needs to go before Parliament before it is passed. It is uncertain what will remain of this Immigration Bill following this procees, however it is certain that there are changes ahead for EU citizens wishing to make the UK their home.

What is clear is all EU citizens in the UK, regardless of when they arrived will be required to obtain immigration status in UK law.

This is a very board brush explanation and each case will differ depending on the individual circumstances.

If you are an individual wishing to clarify your rights or a business wanting to confirm your legal obligations in terms of completing sufficient ‘right to work’ checks or the position of your EU employees, the immigration team at Stephens Scown would be more than happy to assist!

Lisa is a solicitor in our Exeter office. To discuss the content in this article or any other HR issue call 01392 210700 or email employment@stephens-scown.co.uk.