Can EU citizens living in the UK confirm their residence status prior to Brexit?

Since Britain's decision to leave the European Union was announced in June 2016, there has been widespread speculation about what this will mean for EU citizens living in the UK (and indeed UK citizens living in other EU member states).

Advice from many to those eligible EU nationals who have lived in the UK for at least 5 years was to confirm their permanent residence status now by applying for a Certificate of Permanent Residence.

However, the Prime Minister Theresa May's announcement yesterday indicated that things may not be that simple.

The government has published a statement which confirms their commitment to safeguarding the position of EU citizens living in the UK.

The statement also confirms that, once the UK has officially withdrawn from the EU (which could happen at any point on or before 29 March 2019), documents certifying EU nationals' rights of residence (Residence Cards) and permanent residence (Certificates of Permanent Residence) will no longer be sufficient evidence of the right to reside in the UK.

Instead, EU nationals will need to confirm their right of residence in accordance with UK law. How this will need to be done is not certain, but it seems that it will involve a different application process.

Permanent Resident Status: EU citizens will need to "qualify"

Once the UK has officially left the EU, the government has indicated that they will create new rights in UK law for "qualifying" EU citizens who are resident in the UK to confirm their settled status.

To "qualify", EU citizens must have been resident in the UK before a specified date and have lived in the UK for a continuous 5 year period. The specified date has not yet been confirmed, although it will be no earlier than 29 March 2017 and no later than the date of the UK's official withdrawal from the EU.

Qualifying citizens will be given a grace period of time to apply for documentation proving their settled status post-Brexit. It has not been confirmed how long this grace period will be, but it is expected to be up to 2 years from the date the UK officially leaves the EU.

The form of application, and the application process, has not yet been confirmed. The government have indicated that they intend to offer a streamlined digital process which will allow the use of government data (such as income records) to minimise the burden of the documentary evidence required.

As the new applications will be made under UK law rather than EU law, many will be pleased to hear that certain eligibility criteria, such as the requirement to have held comprehensive sickness insurance if you are self-sufficient or a student, is likely to no longer apply.

EU citizens with less than 5 years' continuous residence

EU citizens who currently live in the UK, but who will not have accrued 5 years' continuous residence by the date the UK officially exits the EU, will be able to apply for temporary status in order to remain in the UK until they have accumulated 5 years' residence.

This temporary status will not necessarily be available to those who have arrived in the UK after the "specified date". This specified date has not been confirmed, but it will be no earlier than 29 March 2017.

The position therefore remains uncertain for EU nationals who moved to the UK more recently, and we await further information from the government on this point.

Documentation confirming residence: a legal requirement

One thing which is certain is that all EU citizens living in the UK after Brexit will need to apply for residence documentation confirming their right to live in the UK.

Crucially, as stated above, the required documentation will be different to the residence documentation that EU citizens can currently obtain to confirm their right to live in the UK.

This unfortunately means that EU citizens who have already acquired a Residence Card or Certificate of Permanent Residence under the existing system, will need to obtain new certification of their status after Brexit.

It is not clear what the format or process for obtaining such documentation will be.

The government have suggested that those with Certificates of Permanent Residence may benefit from a more streamlined process of obtaining the required documents after Brexit, so pre-emptive applications made prior to Brexit may not be in vain.

British Citizenship

EU citizens who acquire British Citizenship prior to Brexit should not need to apply for any additional documentation to confirm their residence rights in the UK after the UK has left the EU.

Individuals who have applied, or are in the process of applying, for a Certificate of Permanent Residence may therefore consider applying for British Citizenship.

What steps should I take now?

It is not yet possible for EU citizens in the UK to apply for the new residence documentation which will be required of EU nationals under UK law after Brexit, as we have not yet been given any information about what the application is or what it will involve.

The government have however suggested that they will give EU nationals in the UK the opportunity to confirm their status before the UK officially leaves the EU. We await further information on this.

EU nationals may still consider applying for Certificates of Permanent Residence and/or British Citizenship prior to Brexit in an attempt to streamline the transition process.

If you would like further advice, please contact Ashfords' Immigration Team.

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