EU nationals and Brexit: How to answer immediate and technical questions

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1 EU nationals and Brexit: How to answer immediate and technical questions We know that you will have received lots of questions about the UK government and European Union s agreement on citizens rights. The agreement is set out in a joint report that can be found here. Our FAQ will help you to answer the most common questions. If you wish to provide your staff with links, the FAQ is available on our website here. Please let your Fragomen account manager know if you would like us to create a tailored version or us at brexit@fragomen.com. The key questions 1 WHAT HAS BEEN AGREED? The UK and EU have agreed that EU nationals living in the UK will be able to continue to live here on broadly the same terms as now, so long as they enter the UK before the UK exits the EU and do not have a disqualifying criminal conviction. The same has been agreed for British citizens living in Europe. 2 WHAT IS THE EXIT DATE? The exit date will be the date of the UK s withdrawal from the EU. As the UK formally invoked Article 50 on Wednesday 29 March 2017, it is widely expected that the UK will exit the EU two years later, on 29 March DOES THIS MEAN ALL EU CITIZENS CAN STAY IN THE UK? It is not yet clear for everyone, although workers should be fine. An outsourcing question is whether EU nationals need to be exercising Treaty rights in the UK. People who are workers, self-employed, students, self-sufficient and retired persons of independent means are all broadly considered to be exercising those rights. Job seekers may be too, although the definition of a job seeker is complex and needs to be looked at carefully. Generally, jobseekers are allowed a reasonable period to find employment and what is reasonable will be dependent on the individuals circumstances. Some people may fall between the cracks, for instance retired people who rely on the state or unemployed people claiming benefits. The UK and EU will need to clarify whether they will be able to stay and we will provide a further update once this is available. However it is not as simple as do nothing and stay. The UK government has proposed that EU nationals who entered before the exit date must apply for the appropriate residence documents (i.e. settled status or temporary status) before the grace period ends Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

2 4 WHAT IS THE GRACE PERIOD? To achieve a smooth transition after Brexit, the UK government has proposed a grace period of up to two years from the exit date. Government communications suggest that during the grace period EU nationals will be able to enter and work in the UK but may need to register their stay. It is not clear whether they will be able to stay after the grace period. We assume that the exit date will be on 29 March 2019, so the grace period is likely to end on 28 March This assumption is used for illustrative purposes only in this FAQ and should not be relied on. 5 AS AN EU NATIONAL, CAN I STAY IN THE UK PERMANENTLY? Yes, so long as certain criteria and processes are followed. If you are a EU national and you have lived in the UK for five years or more before the end of the grace period, you will normally qualify for settled status. Once you have settled status, you will enjoy broadly the same rights as a British citizen in the UK. If you are a EU national who first entered the UK prior to the exit date, but has lived in the UK for less than five years at the end of the grace period, you should qualify for temporary status. You should then be able to convert this to settled status when you have completed five years residence. Non-European family members of EU nationals should be able to stay too and we provide more detail below. If you have any criminal convictions, you may struggle to qualify. This will depend on the nature of the offence, the sentence and the date of the conviction. You and your family members will be expected to make an application for temporary or settled status before the end of the grace period, but there will be some discretion if there is a good reason why you have not applied Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

3 6 SHOULD I APPLY NOW AND WHAT SHOULD I DO IF I WANT TO BECOME BRITISH? You will not be able to apply for either temporary or settled status just yet. It is expected that the UK will begin to accept settled status applications from September You are still able to submit an application for a registration certificate or a permanent residence card now. However, we tend not to recommend applications for registration certificates. They are not mandatory documents, rarely serve a purpose and will be invalidated with Brexit. However if you have non EU family members joining you here, it is advisable to apply. It may make sense to apply for permanent residence now if you want to become British. You will be eligible to apply for a permanent residence card after living in the UK and exercising treaty rights here for five years. Once you have held permanent residence for 12 months (so have been in the UK for six years in total,) you may apply for British citizenship. In approving your permanent residence application, the UK government will confirm the date on which they deem you to have obtained permanent residence so you may not need to wait for 12 months from the date of your permanent residence card application approval to apply for British citizenship. There are two helpful exceptions to this rule Irish nationals (who will not be affected by Brexit anyway) can apply for citizenship without the permanent residence card, and the European spouses of British citizens can apply for citizenship immediately on receipt of the permanent residence card, without waiting until they have accrued six years in total. If you are keen to become British quickly, it would make sense to apply for the permanent residence card now. If you are not, you could wait and apply for settled status from September The UK government has promised that it will be an easier application than the current application. The timeline 7 WHEN SHOULD I APPLY? You can apply for settled status once the new process is rolled out, anticipated in September It is not clear at this stage whether temporary status applications will be introduced at the same time, but they should be introduced no later than March You should apply for settled status or temporary status before the end of the grace period. Although the EU UK deal allows for a proportionate approach where someone does not apply before the deadline if there is a good reason, it does not set out what would constitute a good reason. So you should, where possible, apply on time. If your out of time application is refused by the UK authorities, you will be able to have the decision reviewed. 8 HOW LONG WILL IT TAKE FOR A DECISION TO BE MADE? It has been reported that the process will take between two and three weeks, but this has not been confirmed yet Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

4 The process 9 HOW WILL THE PROCESS WORK? Although the detail has not been published yet, the joint report promises that the process will be transparent, smooth and streamlined. It is expected to be a simple online application process and the UK s Minister for Immigration has suggested it will contain no more than six to eight questions. Individuals who already hold a permanent residence document would have to meet limited criteria, and the application process would be as streamlined as possible. It has also been suggested that scanned copies of passports may be accepted as identity documents rather than originals. Existing UK government data, such as income records and HMRC data, may be used by the government to reduce the documentary evidence required from the applicants. However, the specifics have not yet been decided by the UK government and we will provide a further update once this information is made available. 10 WHAT WILL IT COST? It has been announced that the cost of applying for a settled status application should be in the region of 72 and free of charge for those who already have permanent residence cards. 11 WHAT IF I ALREADY HAVE PERMANENT RESIDENCE? If you already have permanent residence but you are not British, you will still need to apply for settled status under the new system. We are promised that this will be a very easy and relatively quick process and the government advises that a decision should be made within two months WHAT SHOULD IRISH PEOPLE DO? Irish people are automatically deemed to hold settled status in the UK, so they are not required to do anything in preparation for Brexit. However, Irish people can continue to apply for British citizenship if they meet the 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 apply Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

5 Family WILL MY NON-EUROPEAN FAMILY MEMBERS BE ABLE TO STAY HERE WITH ME? Yes, your non-european family members already living in the UK will be able to stay with you as long as they: Enter before the UK exits the EU Do not have a disqualifying criminal conviction; and Held status in the UK. That status is likely to be similar to temporary status and settled status, but we await more detail I HAVE NON-EUROPEAN FAMILY MEMBERS WHO WANT TO MOVE IN FUTURE, WILL THAT BE POSSIBLE? This will depend on your relationship and whether you were related before the exit date. If you were related before the exit date (and continue to be on the date of application) then your direct family members typically should be able to join you in the future. Direct family members typically include parents, spouses, civil partners and children. The UK EU deal does not protect extended family members such as siblings, uncles, aunts, nephews, nieces and grandparents etc. If you were not related before the exit date, for instance you get married at a later date, your family member will be subject to UK law. In practice, the biggest difference may be that under UK law the EU spouse will need to meet certain earnings requirements to sponsor the non-eu or EU spouse. At present, the annual gross earnings threshold is at 18,600 for spouses of UK nationals or settled migrants. Any children born or legally adopted after the exit date will also be protected by the exit agreement. The politics WILL THIS DEFINITELY HAPPEN? The agreement states that nothing is agreed until everything is agreed. As such, these conditions will be subject to the UK and EU agreeing to the full exit agreement WHAT IF THERE IS NO BREXIT DEAL? All bets are off. We would hope and expect that EU nationals will still be able to stay and under similar terms if there is no deal, but the UK government has not yet made that promise Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.

6 The future HOW WILL IMMIGRATION BE MANAGED AFTER BREXIT? It is too early to say. The government has asked an independent committee to review the UK labour market after Brexit. They are also expected to publish a consultation White Paper in the coming months. Frankly though, it is likely to be some time until we know exactly how things will work CAN I LOSE MY SETTLED STATUS IF I LEAVE THE UK? Once you have obtained settled status, you would only lose this status if you leave the UK for 5 years or more. 19 WILL I NEED TO EVIDENCE MY RIGHT TO WORK? Yes, all employees are subject to right to work checks. After the end of the grace period, EU nationals will need to have the appropriate residence document (i.e. temporary status or settled status) to show that they have the right to work. Information WHERE CAN I FIND MORE INFORMATION? If you wish to read the releases and policy papers from the UK government, you can find them on the below link: Fragomen will be publishing more material as further details become available Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All rights reserved.