In an attempt to move forward with the negotiations on leaving the EU, the government is seeking to resolve the key issues as part of a so called ‘divorce bill’, before being allowed by the EU to move to the talks on a transitional period and thereafter on future relations. A relative lack of progress with the talks and general reluctance on part of the EU to make concessions to the UK have prompted many business leaders in the UK and senior politicians in the EU to seriously consider the possibility that a ‘no deal’ scenario is possible, and that the UK might drop out of the EU without a deal in March 2019. Back in April, the government announced a new ‘settled status’ for all EU nationals being present in the UK at a specified date, responding to the criticism that the system currently in place for processing EU migrants involving a 85-page application form was not fit for purpose to potentially deal with more than 3m applications. It has now emerged that the government last week submitted a document to the EU, seeking to particularise their proposals on putting the new settled status into practice.
Apart from the generally conciliatory tone, the first thing that becomes obvious when reading the 5-page document sent to Brussels is that the UK has taken on board the earlier criticism about the previous system being too bureaucratic and complicated, and is now in the process of rolling out a brand new ‘user friendly’ system designed to streamline the application process going forward. To somewhat ease the burden on the system that is likely to follow immediately after leaving the EU, the government is seeking to introduce a voluntary application process to run alongside existing treaty rights before the actual leaving date so that people planning to stay in the UK after Brexit can apply as soon as possible. The government concedes that getting everyone processed in a timely manner poses a great challenge, and indicates that there will be at least a 2-year period after the leaving date, during which applications could be submitted, and that individual applications might still be taken into consideration if submitted out of time.
With regard to the substance of an application itself, the government sets a priority to minimise the documentary burden by employing various means such as electronic record check against databases held by other government departments. For those who already possess an EEA Permanent Residence (PR) document, there will be a process in place to change this status for a new one subject to ID checks being carried out. The criteria for granting the status and other conditions including those for refusal will be set in the Withdrawal Agreement (WA) which is yet to be finalised. There will be no discretionary basis to refuse unless a ground for refusal stipulated in WA applies. It has already been agreed that a 5-year period of continuous residence, currently required for PR applications, will be relied on by the UK when processing applications for ‘settled status’ going forward. Also, the government will dispense with a ‘genuine and effective’ work test being applied and checks of comprehensive sickness insurance being made for those economically inactive. There will be a process in place to remedy any administrative errors that might ensue during the application process, with discretion being generally exercised in favour of applicants. Any decisions can be further appealed in immigration courts.
A separate section in the document is dedicated to the potential grounds for refusal on the basis of criminality and public security. Unlike the previous sections, the tone here sounds less conciliatory, with the government indicating that it has already been enforcing the policy to deport those EU nationals exercising free movement rights, whom it considers to be a threat to public policy and public security. This policy will continue to operate when dealing with previous criminal conduct as part of an application for settled status, with the personal circumstances of the applicant being taken into account. However, previous public policy assessments will not be reconsidered unless new information comes to light. In relation to deportations on the basis of newly committed offences after Brexit, these will apply to those EU citizens who commit a criminal offence and when a prison sentence of at least 12 months is imposed. In all cases, the current safeguards such as notification and right of appeal will still apply.
It remains to be seen whether the new detailed proposals on EU citizens’ rights after Brexit will be considered positively by the EU officials dealing with withdrawal negotiations. There has already been a mixed reaction to the proposals, with members of the working group on Brexit in the European Parliament pointing to major issues yet to be resolved including those relating to the ability of the European court of justice to adjudicate on matters arising out of the agreement. The UK maintains that ‘safeguarding the rights of EU citizens living in the UK ... is our first priority in the negotiations’. The details of the final agreement though are yet to be published.
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