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The UK and the EU reached an agreement on EU citizens’ rights in March 2018 in Part Two of the draft ‘Withdrawal Agreement’. This provides essential safeguards for EU nationals, their family members and employers. However it is important to note that EU citizens’ rights will only become legally binding in the event that the UK and the EU agree on all other aspects of the UK exit agreement. This includes the issue of Northern Ireland and the single market. Therefore, if there no UK agreement on exiting the EU by the 29th March 2019, the Withdrawal Agreement will not apply. It is likely that if there is no agreement, free movement of EU citizens will continue until such time as it is replaced by an agreement between the UK and the EU.

The current position following the draft Withdrawal Agreement is as follows:

  • Under the draft Withdrawal Agreement, there will be a transition period between 29 March 2019 and 31 December 2020. This means that EU nationals moving to the UK and UK nationals moving to the EU can do so on the basis of free movement rights until 31 December 2020, which becomes the “cut-off date”.
  • After the 31 December 2020 (“cut-off date”) EU citizen shall be eligible to remain in the UK under the terms of the Withdrawal Agreement. Similarly, UK employers would continue to have access to an EU migrant workforce until at the cut-off date”. • EU citizens coming to the UK after the end of the cut-off date are expected to be subject to a new (yet to be determined) immigration system.
  • The draft Withdrawal Agreement provides that family members may continue to join EU nationals in the UK until cut-off date. From 1 January 2021 family members will be allowed to enter the UK under free movement rules, provided they can evidence that their family relationship with the EU national existed before 31 December 2020 these include spouse / civil partner; children under 21; dependent children older than 21; dependent direct relatives in the ascending line and Children born or adopted after 31 December 2020 may also qualify, in certain circumstances.
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It is expected that family members entering the UK after the cut-off date and not falling within the exemptions above will be subject to the UK Immigration Rules which currently require a minimum annual income of £18,600 (or savings of £62,500 held for at least six months). Those EU citizens and their family members residing in the UK after the end of cut-off date who wish to remain in the UK will be required to apply for a “settle status document” under the Withdrawal Agreement (even if they already hold a document issued on the basis of EU free movement law).

To acquire a settled status document you will need five years’ continuous residence in the UK prior to the cut-off date. If you have less than five years residence you will be given ‘pre-settled’ status to allow you to complete five years and become eligible for settled status. The settled status application system is expected to be a highly simplified, streamlined procedure, made online or via a mobile phone app (with the option to complete a paper form for those unable to apply online).

The application will involve three main steps, (a) Proof of identity by uploading ID documents; (b) Confirmation of continuous residence with a checking system through the tax authorities; and (c) Declaration of criminal conviction. The application fee will be £65 for those aged 16 or over and £32.50 for children under 16.

Those who already hold a Permanent Residence document will be able to swap it for a settled status on the production of valid ID, proof of ongoing residence in the UK and additional criminality checks, free of charge.

As mentioned above the above EU citizen rights depend on whether there is an agreement between the UK and the EU on exit. If there is not then free movement will probably remain for a period of time until substituted by a future agreement.

Domenic Pini (Pini Franco LLP)

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