The government yesterday published its Rights of EU Citizens in the UK Policy Paper Factsheet for workers and employers together with detailed proposals setting out its offer to EU nationals currently resident in the UK and those proposing to enter for the purpose of residency, pre-Brexit. Although there is a fair amount of detail to flesh out the announcement made by Theresa May at the EU summit dinner last Thursday, and much depends on the outcome of current negotiations with the other 27 EU States, as indicated in our blog piece at the time, a number of questions remain unanswered. Here are the key points, with our commentary:

• “No EU citizen here lawfully before the cut-off date, which is yet to be agreed, will have to leave as a result of us (sic) leaving the EU. There will be no ‘cliff edge’ for businesses or individuals and we want to keep together families living in the UK.”

 It is difficult to see how the EU will allow a cut-off date before Brexit date. It is possible that the government knows that it will not win this particular battle and is prepared to be seen to concede it (perhaps in exchange for winning a separate point, say, in relation to no ECJ jurisdiction over future EU citizen-related disputes). The government seems unlikely to prevent the last-minute rush to get into the UK which it had been arguing against but given the numbers of EU nationals that are reported to be returning home, this may no longer be as pressing a concern.

• “Our intention is that EU citizens who have been continuously resident here for five years will be allowed to stay indefinitely by getting ‘settled status’. This means these citizens will be free to reside in any capacity, have access to public funds and services and apply for British citizenship.” “Family dependants who are living with or join EU citizens before the UK’s exit will be able to apply for settled status after five years in the UK too.”

It is vital that the government clarifies at the earliest stage what, if any, additional qualifying criteria (in addition to five years’ residence) will apply to this new “settled status”. The detailed proposals refer to “residence” in the UK without specifying a requirement to hold a qualifying status (e.g. work, study, self-sufficiency) for that period as is the case to qualify for EU permanent residence. If only residence is required, this is a very positive step forward. However, there is also repeated reference in the detailed proposals to ‘lawful’ residence in the UK, perhaps indicating that holding a qualifying status will be a condition. If this is the case, the envisaged “streamlined” process for settled status will prove challenging.

“Settled status” in UK law will mean the same as the status of indefinite leave to remain granted to non-EU nationals after five years’ residence in the UK (in contrast to the more generous permanent residence status currently granted to EU nationals under EU law). Amongst other things, permanent residence under EU law includes the continued right to be joined in the UK by eligible non-EU family members without meeting the rigorous financial criteria applied to the non-EU spouses and partners of UK citizens. This may prove to be a sticking point during the UK’s negotiations with the EU.

• “EU citizens who arrived before the cut-off date but haven’t been here for five years will be allowed to get permission to stay until they have accumulated five years, after which they will be able to apply for settled status.”

Although it has been broadly assumed since the referendum that EU citizens with less than five years in the UK before a certain date (be that Brexit or earlier) could and should not reasonably be required to leave, this qualified confirmation will be a relief for many who were unsure that common sense would prevail.

Nonetheless, the cut-off date must be agreed as soon as possible to provide EU citizens with the certainty they require for making life decisions including accepting new roles and either moving to the UK or returning home. The detailed proposals state that those who arrive after the cut-off date but before we leave the EU will be allowed to remain in the UK for at least a temporary two year grace period and may, following an application for further leave to remain under the new system before the end of the grace period, become eligible to settle permanently depending on their circumstances, but “this group should have no expectation of guaranteed settled status”.

• “Permanent residence status is linked to the UK’s membership of the EU and so will no longer be valid after we leave. Therefore EU citizens do not need to apply for documentation confirming their permanent residence status.”

A key question will be whether EU nationals who have already been in the UK for five years and acquired permanent residence but have not yet obtained a card to confirm this can and should still apply for such a card if they want certainty of their status now. In line with the current Immigration (European Economic Area) Regulations 2016 which require the Secretary of State to issue qualifying EEA nationals with a document to confirm permanent residence, the detailed proposals confirm that the Home Office will continue to issue documentation such as permanent residence cards until we leave the EU.

Our view for now is that those EU citizens who still want or need formal confirmation of their permanent residence at the earliest stage and can prove their eligibility easily (e.g. through at least five years’ continuous employment in the UK), should proceed with their applications as planned. The current online application process for permanent residence is now reasonably straightforward, it allows for an immediate passport return service (currently not available for dependants applying without a main applicant) and the application fee is only £65 per person. Collating the documentation required for this process (e.g. five years’ of P60s for those in employment) may also be helpful for any future registration process for “settled status”.

It would also seem logical that those who already have a permanent residence card can use this as a simplified and expedited means of obtaining settled status. Although detailed proposals state that a permanent residence card will not automatically lead to settled status, they also confirm that the government “will seek to make the application process for settled status as streamlined as possible for those who already hold such [permanent residence] documents”.

In any event, for those EU nationals applying for British citizenship, a permanent residence card is a prerequisite.

• “We will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. We will make the process as streamlined and user-friendly as possible for all individuals …”

The government has indicated that it intends to minimise the burden of documentary evidence (for example, to prove continuous residence). This is also a very positive step but in reality will the government be able or willing to devote to the new process the resources necessary to avoid the unacceptable delays and uncertainty experienced by EU nationals until now?

Thankfully, the government has seen the sense of proposing to do away with the requirement that EU nationals considered economically inactive during any part of their time in the UK (i.e. students and those relying on their savings) must have comprehensive sickness insurance during those periods as a condition of their ability to obtain temporary permission or settled status.

• “If you are a UK business that employs an EU citizen, you do not need to do anything now. There will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU before exit.”

That is all very well, but trust between EU nationals and the UK government currently appears to be at an all-time low. Many employers will now be ramping up support for their EU staff in working out their options and what the proposals are likely to mean in practice – assuming they are implemented.

• “… after the UK leaves the EU, EU citizens will need to apply for documentation to prove they have permission to work legally in the UK. There will be plenty of time for them to do so and we will engage closely with businesses and others on how they will be affected by these changes”.

This is the briefest of passing references to a proposed whole new immigration/work visa system for EU arrivals post-Brexit – an indication that there is still much work to be done to clarify the position of EU nationals already in the UK before looking to the future. We look forward to contributing to any government consultations relating to a new immigration system on behalf of our clients.

• “We will be asking EU citizens to make an application to the Home Office for documentation demonstrating their new settled status in due course.” “All EU citizens and their families in the UK will need to apply to the Home Office for permission to stay. This is regardless of the date of their arrival.” “However, there will be a grace period of up to two years to give EU citizens and their families sufficient time to make their application.”

The big questions here are how long it will take the Home Office to set up this system, what the criteria will be and will it have sufficient resources to process three million applications? Estimates under the current application system put the timeframe somewhere between 14 and 120 years – even with a proposed new digital light-touch process, we may still be looking at a lengthy wait before the status of all EU nationals in the UK is regularised.

The government’s detailed proposals and accompanying Factsheet indicate that it will “provide certainty to EU nationals and UK employers by setting out its offer”. Without wishing to be either pessimistic or pedantic, however, we must keep in mind that it is indeed only an offer, that none of this is yet agreed by the EU and therefore that some or all of these aspirations may well ultimately not become “fact” at all.