Brexit talks started on 19 June 2017. One of the first announcements made was about the immigration rights of the EU nationals in the UK. Under the EU Treaty regime EU nationals in the UK were exempt from UK immigration rules and immigration control. This is set to change with the announcement made by the Home Office to the EU nationals on 26 June 2017.
Here we summarise the main features:
1. What is a settled status?
We have noticed the immediate reaction of the affected citizens, as they could not grasp the newly introduced concept of the ‘settled status’.
The new rules state that EU nationals who have been continuously living in the UK for 5 years will be able to apply to stay indefinitely by getting ‘settled status’. This means that these EU nationals will be free to live in the UK, have access to public funds and services and apply for British citizenship.
The Home Office chose to use ‘settled status’ instead of ‘permanent residence’ because ‘settled status’ is a term used in the UK immigration rules, while ‘permanent residence’ is a legal concept derived under the EU law.
Therefore, the Home Office is making a clear distinction and clearly brings EU nationals within the scope of the UK immigration rules. EU nationals who have already applied for permanent residence and had their status confirmed will have to apply for the ‘settled status’.
2. What is a cut-off date?
The cut-off date is used to describe the date when the EU Treaty rights end and the new UK immigration rules apply to the EU nationals and their family members in the UK.
The cut-off date is currently not clearly set, but can fall between 29 March 2017 and 29 March 2019, depending on the progress in Brexit negotiations.
It is projected that EU nationals and their family members will be able to apply for the settled status before the 5 years of continuous residence before the cut-off date is met.
3. When do the new rules are set to apply?
In 2018, before the UK leaves the EU, a new application system will be set that will enable EU nationals and their family members to apply for the UK settled status.
Previously, there was no formal requirement for the EU nationals and their family members to apply for a residence document in the UK. However, under the new UK regime, such a requirement is mandatory. The new residence document will prove the EU national’s right to live and work in the UK.
4. Grace period
A grace period will be granted for EU nationals after the UK leaves the EU. This means that the EU nationals will not be required to leave the UK before they obtain required residence document. The grace period is currently estimated to last for up to 2 years after the UK leaves the EU. If the residence document is not obtained by the end of this period, then EU nationals and their family members concerned will no longer have a legal right to remain in the UK.
Citizens arriving within the grace period to the UK, will be able to benefit from the grace period before they apply to have their immigration status regularised with the new immigration requirements in place.
5. Application of the rules to Swiss and EEA nationals
Currently, the new regime is to apply for the EU nationals only, with the view to extend its application to Swiss and EEA nationals.
6. Wider implications – the employers
EU nationals were exempt from UK immigration rules. It appears under new immigration rules the EU nationals will have to apply for the ‘leave to remain’ just like the third country nationals currently. This may indicate the need for the employers to potentially have to apply for the sponsor licence.
A sponsor licence is normally required for the businesses that employ third country nationals. Currently, this possibility is not mentioned in the Home Office communication. However, this requirement may be quite likely in the future.
The EU nationals who would have obtained the settled status should no longer find themselves within the restrictions of the immigration rules. Currently, third country nationals who have obtained indefinite leave to remain are regarded as settled and the employers are not required to hold the sponsor licence to employ them.
Needless to say, the sponsor licence requirement is an additional monetary and compliance cost for the businesses. Businesses that hold sponsor licence are regularly visited and audited by the Home Office. If during its visits, Home Office finds out that the business does not comply with the sponsor licence requirements, this licence can be taken away from the business affected and the employee may be required to leave the UK.
Should you require any assistance to regularise your current immigration status under the current rules, please contact us via email: email@example.com or tel.: 0203 286 4887.