The Department for Exiting the European Union has published a technical document setting out the future rights of EU citizens and their family members, and how its new “settled status scheme” will operate.  Currently, EU citizens do not need a document to confirm their residence status in the UK.  After Brexit this will change.  EU citizens will have to obtain this status by application to the authorities and therefore documentation will be a condition for lawful residence in the UK.  Thus it will be mandatory to obtain settled status or a temporary residence permit.

According to David Davis, Secretary of State for Exiting the EU, the government “will support everyone wishing to stay to gain settled status through a new straightforward, streamline system.”   Davis has further guaranteed that EU nationals will not have their applications refused “on minor technicalities” and caseworkers considering applications will exercise discretion “where appropriate,” with the expectation that “the majority of cases will be granted.”

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The new streamlined system will be low-cost, digital and user-friendly.   The document commits to:

  • giving plenty of time to apply after Brexit, with a two-year grace period thereafter to make the application;
  • minimising the documentary burden by developing a system that draws on existing government data (for instance, HMRC records of employment);
  • enabling caseworkers to contact the EU national directly in order to resolve minor issues;
  • incorporating the principles of “evidential flexibility”  allowing caseworkers to exercise discretion of favour of the applicant where appropriate;
  • keeping the cost of an application to no more than that of a British passport (currently, £72.50);
  • giving an administrative review opportunity and a statutory right of appeal if the application is refused;
  • making decisions solely on the criteria set out in the Withdrawal Agreement;
  • not requiring citizens to have held comprehensive sickness insurance where they rely on their UK residence whilst studying or not economically active;
  • disregarding the genuine and effective work test and undocumented periods of residence where overall satisfied that the residence requirements are met;
  • a simpler, lower cost process for those who already have permanent residence to exchange this for a “settled status” document;
  • providing a voluntary application process before exit so that those who wish to do so can get their status earlier;
  • setting up a registration system for EU nationals wishing to come to the UK.

EU citizens with permanent residence documentation will have to swap this document for the new settled status document.   The document promises this to be a simplified process subject to ID verification, submission of a photograph, a security check for criminal convictions and confirmation of ongoing residence.  It is unclear whether the EU national will have to prove continued residence since the grant of permanent residence or alternatively, show current residence.

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Image: Alexas_Fotos

Under the Withdrawal Agreement, the criteria for granting settled status remains the same, i.e. EU nationals will be required to prove five years’ continuous and lawful residence as a worker, self-employed person, student, self-sufficient person or family member thereof.

RELATED: Brexit survival guide: Permanent residence applications for EU nationals and their families 

In separate guidance to EU nationals, updated today, the government state that the cut-off date will not be earlier than 27 March 2017 but it is yet to be agreed. This means that EU nationals and their families who arrived before the 27 March 2017 but who have not yet been able to evidence the five years’ continuous residence will be given temporary status until they can build up the five years.

The position of EU citizens who arrived in the UK after the cut-off date is less clear.  They can apply for a temporary residence permit but details of the rules are yet to be agreed.  It is expected that their rights will also form part of the final negotiations with the EU and therefore they will hopefully acquire residence rights, at first temporary, through a similar application process.

Applications will only be refused when:

“…the application does not fall within scope of the Agreement, either because they were not resident before the specified date or because they did not meet the conditions as prescribed in the Withdrawal agreement, or because the applicant is refused on criminality or security grounds…”

Criminality and security grounds for expulsion will be considered where (as it is the case under the current applicable Citizens Directive 2004/38), the individual poses “as genuine, present and sufficiently serious threat to the fundamental interests of UK society.”

All refused applicants and their families will be able to remain in the UK until the end of the appeal process absent of criminality grounds.  If the appeal process fails, the EU nationals and their families will be required to leave the UK, with no entitlement to work  or access services.

The government’s stance is welcome, particularly regarding the withdrawal of the requirement to hold comprehensive medical insurance through the period of studies or economic inactivity.   Equally, the introduction of the principle of evidential flexibility is good news albeit its application can at times be controversial as reflected by the caselaw. David Davis and his team will need to produce further guidance on the nature and extent of these new discretionary powers.

Finally, the guarantees that the majority of applications will be granted, and applications will not be rejected for technicalities are both positive steps.  In respect of current applications where 1 in 4 are said to be rejected, the government cites as a “top reason” for rejection “not having signed the application form” and “not having paid the correct fee.”  These grounds of refusal will no longer be valid. That’s some relief, at least.

Posted by Miriam Carrion Benitez

Civil rights barrister specialising in human rights, immigration and asylum and education law.

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