Ivon Sampson discusses Theresa May’s “Fair And Serious Offer” to EU nationals living in the UK

23rd June 2017 by

The ‘fair and serious offer’ for anxious EU nationals living in the UK from Prime Minister Theresa May is neither and presents nothing new. Furthermore, it will leave many with the same uncertainty as they currently face.

The main problem with Theresa May’s proposal is that the UK Government has not properly thought through the details.

In particular, what to do with those EU citizens residing in the UK who don’t fit neatly within the European Economic Area regulations for getting permanent residency. How are they to be treated?

And the ‘offer’ is also contingent on the EU guaranteeing the same rights to UK citizens living in the EU. This is something that the UK government has said repeatedly since Brexit.

Let’s consider what has been suggested by the Prime Minister:

  • A permanent right to remain in the UK called “Settled Status” to EU citizens resident in the UK for 5 years. We are yet to discover what the criteria for such a status will be.
  • A grace period of up to 2 years for those who have not reached the milestone of 5 years allowing them to build up 5 years worth of residence. The date that the grace period will start has not been declared. After the grace period has elapsed, newly arriving EU citizens will be subject to whatever immigration system replaces freedom of movement after Brexit.

The Prime Minister told fellow EU leaders that she was willing to agree to a “cut-off point” between 29 March this year and the later date of March 2019, which is preferred by the European commission.

Presently, Regulation 15 of the European Economic Area Regulations sets out the criteria for permanent residency for EU nationals. Those that satisfy the criteria may have already automatically acquired it, some having done so many years ago when they had reached the 5 year milestone.

However, not everyone fits the criteria. For example, an EU national living in the UK as a self-sufficient person is entitled to remain in the UK under freedom of movement. After 5 years residence they can apply for permanent residency. One of the criteria for acquiring residency for them is that they must have held comprehensive medical insurance during the whole of the qualifying period. Many have not.

So although they may have lived in the UK for decades they are not entitled to apply for permanent residency. What will happen to these people under Theresa May’s proposal? Will they get settled status? Have they also not significantly contributed to the UK economy and society generally?

Also, what happens to EU nationals married to Britons and who are not exercising EU Treaty rights? Will they get settled status or will they have to apply under UK immigration Rules, requiring a further 5 years in the spouse category before they are granted Indefinite Leave To Remain. The spouse category also requires harsh minimum income requirements that don’t exist under European Economic Area Regulations.

There is also the potential problem if the EU and the UK do not agree to a “divorce settlement figure” or on the Republic Of Ireland and the Northern Ireland border issue. Are the rights of EU nationals going to be subject to that being agreed first?

The above as yet are unknowns.

Let’s be quite clear, no agreement has been reached, nor are there details on what the rules will be for being granted permanent residency and how the grace period is to operate. We also have no idea what the relationship between the UK and the EU will be in a year from now.

We have advised EU nationals who have been residing in the UK as qualified persons exercising EU Treat rights as  workers, self-employed, students or as a self-sufficient persons to apply for permanent residency now under the current rules. This is because we don’t know what the new rules will be or when they will come into force. That remains the case. The offer has changed nothing, and will not have relieved any anxieties for the millions of EU nationals in the UK.

For expert advice on all aspects of EEA Immigration law please contact enquiries@healys.com or call on 0207 822 4000.