1 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

Brexit and EU citizens living in the UK: The UK Government’s negotiating position

July 2017

2 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

Table of contentsIntroduction

What is being suggested?

The UK’s Policy Paper

The EU’s Policy Paper

The important dates

What will this mean for people?

What can you do now?

Composing your arguments

How do you answer the immediate and more technical questions?

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3 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

Introduction

The Policy Paper, which is only a proposal at this stage, sets out how the UK wants the Europeans nationals living in the UK to be treated after Brexit. It talks about a new system for issuing settled status and invalidating Permanent Residence documents that have already been issued.

The EU has also published its own offer. It proposes much more generous treatment of European nationals than the UK proposal. With everything effectively up for negotiation, no one knows for certain where we will end up.

What we do know is that this uncertainty is affecting the way people live their lives. It could make you think twice about taking a job, buying a house or starting a family. It might even make you wonder if it is worth staying in the UK.

We are already helping European nationals to understand what it means for them. We are also helping the Human Resources and Mobility teams we work with to navigate this area. We know that you are fielding any number of questions from your colleagues.

This guide will help you answer those questions. Here are the six things we think you should know:

• What is being suggested by the UK and EU?• When are the important dates?• What could it practically mean for people?• What can you do now? • Composing your arguments• How do you answer the immediate and more technical questions?

This guide takes each of those points in turn. We have deliberately focused on the UK Policy Paper. The EU document is of course very important, but is not the source of quite so many questions.

The guide should not be treated as legal advice. This is a complex area and the proposals could affect different people in different ways.

The UK has published its proposal for managing the immigration status of European nationals in the UK, after the UK’s departure from the European Union (EU).

A note of terminologyIn this guide for ease of reference we use the word European national to mean nationals of the European Union and the European Free Trade Agreement: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,Germany, Greece, Hungary, Iceland , Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway , Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Switzerland, Sweden.

Caron PopeManaging PartnerLondoncpope@fragomen.com

4 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

What is being suggested?The UK’s Policy Paper

The key pointsEuropean nationals resident in the UK for five years before a specified date (to be determined and subject to negotiation) would be granted settled status in the UK• Individuals who arrived in the UK prior to a “specified date” (still to be decided, but no earlier than 29

March 2017) and have accrued five years residence would be granted “settled status” under UK law, subject to rules on criminality. The current scheme for European nationals would no longer apply.

Existing residence documents would no longer be valid• Existing residence documents obtained by European nationals and their family members in the UK

under the current European regulations would be deemed invalid after the UK exits the EU.• All European nationals and their family members would need to apply for new residence documents

via a new “streamlined” digital process, even if they already hold a Permanent Residence document or registration certificate.

No “cliff edge”, but European nationals must apply to secure their status• European nationals and their family members resident in the UK on the date the UK separates from

the EU would not be required to leave. Instead, they would be given a likely two year grace period in which to register with the UK Government. Work and study is permitted during this period.

• European nationals would be able to make an application before the UK leaves the EU, should they wish.

• Application fees would apply and be set at a “reasonable level”.

Different rules depending on the date of entry to the UK• Different rules would apply depending on whether the European national entered the UK before or

after the specified date. • European nationals who entered before the specified date but do not qualify for settled status would

be granted a temporary status to take them to five years, at which point they can apply for settled status.

• Those who entered after the specified date can apply for a temporary status in order to accumulate five years in the UK, but should have “no expectation of guaranteed settled status.”

Family members• Dependant family members (including non-Europeans) who are resident in the UK with a European

national at the point the UK leaves would also be granted the two year grace period. They would need to apply for new residence documents in the same way as European nationals.

• Family members of European nationals who apply to enter the UK after the date on which the UK leaves the EU would be subject to the new rules in place at that time, regardless of when their European spouse entered the UK.

5 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

A streamlined process?• Existing government data, such as income records, would be used to reduce the documentary

evidence required for applications under the new system. • Individuals who currently hold a Permanent Residence document would have to meet “limited

criteria”, and the application process would be “as streamlined as possible” for them.• Eligibility criteria would be “tailored”. For example, the UK Government would no longer require

economically inactive Europeans to show they held comprehensive sickness insurance to prove their residence.

Irish nationals are unaffected• The UK Government has stressed that Irish nationals would not be impacted by the proposals,

given that the Ireland Act 1949 regulates the relationship between the two countries and predates membership of the EU. Irish nationals would not be obliged to make residence document applications under the new system.

The UK expects a reciprocal agreement • The UK Government expects the EU and its Member States to offer a reciprocal agreement for UK

nationals living in the EU before the specified date.

A proposal, not an agreement• The content of the Paper is only a proposal at this stage. It will be subject to much negotiation and

could leave the UK Government open to political and potentially legal challenge from a range of parties, including the European Commission, pressure groups and European nationals themselves.

If you wish to read the UK Government Policy Paper it can be found hereThe UK Government’s accompanying factsheet can be found here

For further information contact brexit@fragomen.com

Should European nationals make Permanent Residence applications now? • That is a personal decision. European nationals will need to understand that the UK position is

to invalidate Permanent Residence documents granted under EU law, but this remains a point for negotiation and may not take effect. Regardless, it may still be useful to make an application for Permanent Residence if the European national intends (and is eligible) to apply for British citizenship shortly after obtaining Permanent Residence. This is a complex area and applicants should seriously consider seeking legal advice on the particular facts of their case.

Challenging decisions under the new system • The UK Government has always maintained that once the UK leaves the EU, the European courts

will no longer have jurisdiction in the UK. Any negative decisions in relation to applications from European nationals under the new system could not then be appealed to the Court of Justice of the EU.

• In this Paper, the UK Government reasserts this position. They do not go on to confirm to what extent applicants would be able to challenge negative decisions, to whom the UK immigration tribunals could refer a question of law or if an independent supervisory body would be appointed to oversee disputed decisions or conduct.

The status of Norway, Iceland, Lichtenstein and Switzerland• The Paper confirms the UK Government intends to put in place similar reciprocal arrangements with

these countries. These arrangements will also be subject to negotiation.

6 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

What is being suggested?The EU’s Policy Paper

The EU presented its negotiating position on 3 May 2017. The Paper proposed a two-phase negotiation process: first, the negotiations with the UK will focus on the withdrawal arrangements; second, talks about the transition and the future EU-UK relationship will begin - but only once significant progress on the withdrawal agreement has been made.

In the first stage, the rights of European nationals should be a priority.

Who exactly will qualify for this conservation of acquired rights? The EU insists that the cut-off date should be the actual withdrawal date when the UK is no longer an EU country and not any other date before it

What rights will be protected? Residence rights, social rights, rights to access the labour market or to take up self employment

Arrangements for diplomas, certificates and other professional qualifications’ recognition

In practice this would mean granting settled status to any EU national living in the UK on the date the UK leaves the EU.

7 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

232016

JUNReferendum on membership of the European Union takes

place in the UK

SEP2018

European Commission expects Brexit withdrawal agreement talks to be over and to have a draft withdrawal agreement

28MAR

2021

Expected end date for the two year grace period

29MAR

2017

Article 50 of the Lisbon Treaty is triggered, formally commencing the two year

exit process

28MAR

2019

UK is expected to exit the EUThis is also the date on which the two year grace period of blanket

permission will start, allowing EU nationals in the UK to make applications for temporary or

permanent status.

The important dates

The range for the specified date• This date needs to be agree by the UK and

the EU• European nationals resident in the UK on

this date are guaranteed to be able to apply for settled status (subject to meeting the requirements)

• European nationals who arrive in the UK after this date are not guaranteed settled status

8 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

Sabine and her family can now apply for British citizenship,

having held Permanent Residence for 12 months.

If they do not, their Permanent Residence will be invalidated and

they will need to apply for settled status.

Sabine, a French national, arrives in the UK with her French husband and four year old child. She starts work immediately as a structural engineer, and the family resides in the UK for the next five years with very few absences.

Sabine and her family receive their Permanent

Residence documents

Case Study One: Eligibility for British citizenship

SEP2012

MAR2018

MAR2019

PRE

Sabine has now worked in the UK for five years. She and her family have resided here since September 2012 with short absences from the UK and are all of good character. They are accordingly eligible for Permanent Residence under the UK’s current legal system and submit their applications.

SEP2017

The UK’s proposal for managing the immigration status of European nationals living in the UK involves various key dates, including the crucial specified date, somewhere between 29 March 2017 and 28 March 2019. The specified date has not yet been confirmed and will doubtless form the subject of keen negotiation.

Our case studies assume the specified date is set for 28 March 2019. That may not be right, but should serve to illustrate how the policy could work.

What will this mean for people?

9 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

Case Study Two: Permanent Residence or settled status?

Alessandro has accrued five years residence, has spent very little time overseas and is of good character

Alessandro, an Italian national, arrives in the UK to study physics and subsequently takes a job at a university in Scotland

JAN2013

JAN2018

Alessandro has a choice. He can apply for Permanent Residence now or wait for the new settled status provisions, expected by late 2018.

Settled status may be the best option for Alessandro as he should still have time to qualify for British citizenship in January 2019 before the UK exits the EU. He will need to study the new rules carefully and think about how they correspond with nationality law.

10 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

Case Study Three: Applicants who don’t qualify for settled status by the specified date

Liisa arrived from Latvia on 1 February 2017, she took a job as a nurse in Wales.

FEB2017

The UK leaves the EU but Liisa does not have the five years residency needed for residence. Liisa applies for temporary status under the 2 year grace period of blanket permission.

28MAR

2019

Liisa has been in the UK for five years. She has spent very little time abroad and is of good character. She may now apply for settled status.

FEB2022

Having held settled status for a year, Liisa may qualify to naturalise as British. That will become clearer when the new policy is published.

FEB2023

11 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

What can you do now as an employer?Short term actions:

Do nothing: The UK’s offer is up for negotiation so there is every likelihood that the final arrangements will look quite different. You would not be alone in thinking it is better to wait and see what happens.

Provide general information: You won’t be able to give your colleagues absolute certainty but you can give them useful information to help them plan. For many businesses that might mean putting a briefing or FAQ on the intranet. Some businesses are holding town hall meetings and conference calls. Informal immigration surgeries, amongst other options, are also going down well.

Provide specific advice: Some businesses – not a majority but the number seems to be growing – are giving tailored advice to their EU national employees and even helping them to file applications. That might mean helping them understand whether they could qualify for Permanent Residence and whether it is worth making the application. It could also mean looking at whether citizenship is a realistic prospect.

Thinking ahead:

Data: You should also think seriously about the quality of your data. Do you know how many EU nationals you employ, where they work and what they do? It seems likely that, at some point, they will all need a document showing they have permission to work in the UK. The chances are that you will need to verify that document. Understanding who and where they are will help you manage that process.

Policy: Understanding what your EU national workers do will also be important. The end of free movement will by definition make it harder to employ EU nationals. You may need to think about how you will fill vacancies in the future, whether labour or skill gaps. That might mean changing the way you recruit, changing methods of production, looking at off shoring or using the immigration system. The Home Office will consult on new immigration policy and will expect to be given clear and useful data.

We can help with all of this

12 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

You or your colleagues may have opportunities to speak to the UK Government about their Policy Paper, either directly or through intermediaries. We are having similar conversations with the UK Government, foreign governments and business groups.

We are also working with members of the Strategic Migration Forum to promote consistent and sensible messages to government. Fragomen founded the Forum in 2011 in order to help the business community coordinate their messages to government. It now contains over 40 of the UK’s most credible think tanks and business groups.

Here is what we think are the most crucial points of importance to our clients to and their employees:

Composing your arguments

EU nationals residing in the UK on the date of separation should be given Permanent Residence status, irrespective of how long they have been here.

The specified date needs to be agreed as soon as possible – the longer we wait, the more difficult it is for people to plan their lives.

It is unfair to invalidate existing Permanent Residence documents and doesn’t make operational or economic sense, quite aside from what it means for the actual people involved.

Documentary requirements should be lowered for Permanent Residence applications now. Some people will want to secure a Permanent Residence document and apply for British citizenship, so why insist on documents now that won’t be needed for future Settled Status applications, e.g. Comprehensive Sickness Insurance.

The online form and lower documentary requirements for Settled Status are a good idea and will help applicants and business.

Promising that the application fee for Settled Status will be set at a ‘reasonable level’ is encouraging, but applicants will need some idea of what that means. A Permanent Residence Document costs £65 whereas Indefinite Leave to Remain costs £2,297.

We need to know how a person will be able to travel and take work after separation and before they secure Settled Status or Temporary Status.

This is not an exhaustive list – we have a longer and more technical version – but should be enough to start sensible conversations on headline points.

13 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

WHAT IS THE UK PROPOSING?

The UK has set out its proposal for managing the immigration status of European nationals living in the UK, once the UK leaves the EU. The proposal would mean that European nationals and their family members who have lived in the UK for at least five years would qualify for settled status in the UK. They would need to have accrued those five years before a specified but as yet unknown date, which will be the subject of negotiation with the European Commission. Anyone who has not accrued five years would be able to apply for a temporary visa and follow up with a settled status application at the five year mark.

The proposal would also mean that Permanent Residence already granted under EU law would be invalidated once the UK leaves the EU. This means that European nationals would have to make a new application either for Permanent Residence or for a Registration Certificate.

The UK intends to put in place similar reciprocal arrangements with Norway, Iceland, Lichtenstein and Switzerland, which will also be subject to negotiation.

This is a complex area and there is more to think about than these simple headline policies. You can find a more detailed summary on Fragomen’s Brexit website.

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IS THIS DEFINITELY GOING TO HAPPEN?

No. The content of the Paper is only a proposal at this stage. It will be the subject of lots of negotiation and may well change, not least because senior EU figures are already questioning the value of the proposal.

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How do you answer the immediate and more technical questions?We know that you will have and receive lots of questions about the Policy Paper. Our FAQ answers the questions we are already hearing most often. We have sourced the questions from our staff, our clients and from a major British broadcaster.

If you wish to provide your staff with links, the FAQ is available on our website here. Please let your Fragomen account know if you would like us to create a tailored version or email us at brexit@fragomen.com

WHEN WILL THE SPECIFIED DATE BE?

The specified date has yet to be agreed. The UK Government expects this to be no earlier than 29 March 2017 and no later than the UK’s withdrawal from the EU (likely to be 28 March 2019). We expect this to be the subject of considerable negotiation between the UK and the European Commission.

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The big questions

14 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

WHAT WOULD THE PROPOSAL MEAN FOR ME?

The UK has taken the view that any rights acquired under EU law should not be carried forward after the UK’s exit from the EU. On that basis, the UK wants to invalidate any Permanent Residence documents granted under EU law. Those affected would have to apply for the new settled status document, if the policy is agreed by the EU.

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IS MY PERMANENT RESIDENCE DOCUMENT WORTHLESS?

Not necessarily. Again, this is a proposal not an agreed policy and there is no guarantee that the invalidation of Permanent Residence documents will be agreed with the EU. Moreover, it may be possible for you to apply for British citizenship after obtaining a Permanent Residence document, depending on your circumstances (more detail on this can be found below).

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SHOULD I APPLY FOR PERMANENT RESIDENCE, UNDERSTANDING THAT IT MAY BE INVALIDATED WHEN THE UK LEAVES THE EU?

Whether to apply for Permanent Residence remains an entirely personal decision. Qualifying European nationals should weigh up the pros and cons of making the application.

It is true that Permanent Residence documents may be invalidated after the UK leaves the EU, but it is not a certainty. This will be a matter for negotiation and the UK may be willing to concede the point. So while it may be a wasted exercise, it could also be worthwhile. It is too early to say at this point.

There is a financial cost to making the application, but at £65 it is much lower than most of the UK’s immigration application fees. There is also a cost in terms of time. If a European national will struggle to collect all of the documents needed for an application they may prefer to wait for the UK’s new process to be published. The Policy Paper suggests there would be fewer documentary requirements overall and a streamlined process for those who already have a document certifying Permanent Residence, although we cannot yet say how different that process will be.

European nationals intending to naturalise as British citizens have the strongest argument for making an application. A Permanent Residence document must be submitted with a British nationality application, other than where the applicant is Irish. If you want to become British it may make sense to submit your Permanent Residence and subsequent British nationality application sooner rather than later, not least because we do not know whether the rules will change after separation.

None of this is straightforward and it all needs to be considered carefully, understanding the uncertainties and inherent risks. This is a complex area and you should consider seeking legal advice on your particular circumstances.

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If you already have a Permanent Residence document

If you do not hold a Permanent Residence Document

15 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

HOW WOULD I QUALIFY?

European nationals and their family members who have lived in the UK for at least five years would qualify for the new settled status in the UK. You would need to have accrued those five years before the specified date (which is subject to negotiation) and would be subject to “limited criteria” on application. The precise qualifying criteria has not been set out yet, but is likely to include an assessment of criminality and conduct.

For those who arrived in the UK before the specified date but do not qualify for settled status, you would be able to apply for a temporary status to take you to five years, before applying for settled status.

If you arrived after the specified date, you would need to apply for residence status under the new rules in place for European nationals post the UK’s separation from the EU.

The proposals state that these individuals should have “no expectation of guaranteed settled status.”

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The new settled status

WHAT WILL THE PROCESS BE FOR THE NEW APPLICATION?

We do not know what the new process will look like yet. Individuals who currently hold a Permanent Residence document would have to meet “limited criteria”, and the application process would be “as streamlined as possible” for them. The process would also be “digitised”, an improvement from the much maligned 85 page paper application form.

Existing UK Government data, such as income records, would be used to reduce the documentary evidence required for applications under the new system.

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WHO CAN QUALIFY FOR BRITISH CITIZENSHIP?

Currently, most European nationals and their family members who have held Permanent Residence for 12 months can apply for British citizenship, as long as they hold a Permanent Residence card. If they are married to a British citizen they may apply for British citizenship as soon as they obtain a Permanent Residence card.

Irish nationals are an exception to the rule and do not need to hold the Permanent Residence card.

A number of other conditions apply, including good character and residence requirements. In particular, you must not have been absent from the UK for more than 450 days in the five year period before you apply, or 90 days in the year immediately before.

You should also seek advice on whether your current nationality permits dual / multiple nationality before proceeding.

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British citizenship

16 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

WHAT WILL THIS MEAN FOR MY FAMILY?

Dependant family members (including non-Europeans) who are resident in the UK with a European national at the point the UK leaves the EU, would be able to apply for settled status after accruing five years residence, even if they entered after the specified date. They would, however, need to apply for new residence documents in the same way as European nationals.

Family members of European nationals who apply to enter the UK after the date on which the UK leaves the EU would be subject to the new rules in place at that time, regardless of when their European spouse entered the UK.

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Family members

WILL PERMANENT RESIDENCE DOCUMENTS HELD BY NON-EU NATIONAL FAMILY MEMBERS ALSO BE INVALIDATED?

The proposal does not explicitly confirm that Permanent Residence documents held by non-European family members would be invalidated. We await further detail on this point.

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Other information

WHERE CAN I FIND MORE INFORMATION?

Should you wish to read the UK’s proposals, the paper can be found here

Fragomen will be publishing more material as further details become available.

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WHAT WILL THE COST OF THE NEW APPLICATION BE?

The cost of the new application has yet to be published. The UK Government acknowledges that cost “will be important” for European nationals. Fees would be set at a “reasonable level”. There is no mention of a fee exemption for those who already hold a Permanent Residence document.

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WHAT ARE WE STILL WAITING TO FIND OUT?

The proposal begs more questions than it answers. We are still waiting for many details, including but not limited to:

• When the specified date will be• The precise eligibility requirements for the new settled status• The process and cost of the new application

It is important to remember that this is only a proposal at this stage which will be subject to much negotiation. Fragomen will release further guidance documents as and when additional details are released.

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17 Brexit and EU citizens living in the UK: The UK Government’s negotiating position© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

Atlanta • Auckland • Beijing • Bengaluru • Boston • Brisbane • Brussels • Chicago • Coral Gables • Dallas • Doha • Dubai • Frankfurt

• Hong Kong • Houston • Irvine • Johannesburg • Kochi • Kuala Lumpur • London • Los Angeles • Matawan • Melbourne •

Mexico City • Nairobi • New York • Perth • Phoenix • Rio de Janeiro • San Diego • San Francisco • San Jose, Costa Rica • Santa Clara •

Sao Paulo • Shanghai • Sheffield • Singapore • Sydney • Toronto • Troy • Washington, DC • Zurich

This document is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or email to ukcomms@fragomen.com

© 2017 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates.All rights reserved.

For further information contact brexit@fragomen.com

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