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Can you stay or must you go?

Optimus LAW

EU citizens post-Brexit rights demystified - (Sub Title) On 6th October 2017, the Chancellor of the Exchequer Philip Hammond, wrote to the Director General of the British Chambers of Commerce (BCC) to address the matter of EU citizen’s rights in the UK after Brexit.

In his letter the Chancellor reiterates what has been publicly announced several times since Article 50 was triggered, which is that, “Any UK citizen in the UK at a specified date with five years continuous residence will be able to apply for UK settled status.

"Other EU citizens who arrive before the specified date will be able to stay until they have the five years’ residence to apply for UK settled status."

He also confirmed that there will be a grace period after the UK leaves the EU, to enable people to get their affairs in order and make their applications to settle.

These references to a ‘specified date’ may appear to be opaque. However, the Chancellor’s letter addresses the matter.

“We are clear that it shouldn’t be earlier than the date we triggered article 50 (March 29th, 2017), and no later than the date we leave the EU.”

Still unclear? What this means is that all EU citizens who were in the UK before Article 50 was triggered are entitled to apply for UK settlement, should they wish.

It also means that a date has yet to be set for EU citizens who arrived after Article 50 was triggered.

If you are an EU citizen and you arrived in the UK in, for example, June 2017, then it is not yet clear if you will be entitled to apply for settlement status.

The Chancellor has given a reason for this: "To specify a date now, and then risk this changing through the course of the negotiations, would lead to further uncertainty."

Why wait? The obvious question is why doesn’t the UK government just agree a cut-off date for those who arrived after Article 50 was triggered?

There are two primary reasons. The first is politics. The UK government needs to consider the rights of UK citizens currently living in the EU.

The EU has not yet provided the UK government with any assurances on this matter.

Commentators accuse the government of using people’s lives as bargaining chips.

However, the reality is that a government’s first obligation is to safeguard the security, safety and wellbeing of its own citizens above all others.

It would be extraordinary if the British Prime Minister made cast-iron assurances to EU citizens before first finding out if her own citizens were properly considered.

The second matter is one of sovereignty. The British government is preparing to do what no other country in the world has ever done: to leave the European Union and take back full sovereign control of its affairs.

None of us has been here before. Any decisions that are made today will affect British affairs for years to come.

There are direct fiscal consequences attached to these decisions.

For example, if the government chose to allow any EU citizen to arrive and apply for settlement up to the eleventh hour (29th March 2019) then this leaves the UK open to the potential for a sudden surge of mass immigration.

Would this be fair to the British taxpayers who would have no choice but to pay for their settlement, possible benefits, school fees and healthcare costs?

Of course, whatever the cut-off date is, the UK is likely to see a last-minute increase in arrivals.

This cannot be avoided. But, perhaps that’s another key reason why the government has not yet done so – it must be a carefully weighed decision.

Our advice:

1. If you have been living and working in the UK since before Article 50 was triggered – fear not. Relax. You will be fully entitled to apply for settlement whereupon, if successful, you will be able to stay in the UK permanently. (Disclaimer: Right to Remain is granted only after five years of settlement – this is the case for all citizens from anywhere in the world who wish to take a British passport).

2. If you arrived to live and work in the UK after Article 50 was triggered, your prospects in the UK are yet to be decided. It is likely that a cut-off date will be announced in due course because this is one of the most crucial parts of the early negotiations.

3. If, after a cut-off date has been announced, your arrival happened after that date, it is extremely likely that the UK government will also provide guidance for you on how to apply to stay living and working in the UK. It is fair to suggest that each case will be decided on its own merit and will be linked to employment status.

4. If you are still unsure – call us! Written by Robina Shah @OptimusLaw

For more information on Optimus Law click here.