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Brexit: US/EU Citizens in the UK
An update on dual US/EU Citizen’s rights - progress of negotiations between the EU and UK
Janette Protheroe and Kim Vowden, Kingsley Napley LLP
Published on September 10, 2018
www.kingsleynapley.co.uk

Many US citizens living in the UK have also acquired an EU nationality and have perhaps obtained the right to live in the UK by virtue of their EU citizenship, following marriage to an EU citizen for example. These dual nationals will form part of the cohort of more than three million EU citizens living in the UK who have been awaiting clarity from the UK government with regard to their on-going right to continue living in the UK.

Since the Prime Minister announced details of her Chequers plan for Brexit in early July, there has been no consensus within the UK government as to whether this is the best option for the UK. Given the uncertainty many politicians have stated they believe the chances of a no deal Brexit are at best 50:50. Where does this leave the withdrawal agreement, and specifically the agreement regarding citizens’ rights? Dominic Raab, the new UK minister for exiting the EU, delivered a keynote speech on 23 August to stress his confidence that a no deal scenario will be avoided. The minister stated that 80% of the withdrawal agreement has been agreed between the EU and the UK and further progress is continuing at pace. The measures in the draft withdrawal agreement covering citizens’ rights have already been agreed. Despite this optimism, the minister then went on to outline details of the publication of a number of Technical Notices dealing with the measures to be taken in the event that an agreement is not reached and the UK crashes out of the EU on Brexit day – 29 March 2019.

Should negotiations ultimately fail, all the resources, time spent and money invested in devising the withdrawal agreement will come to nothing. There is a lot at stake for both the EU and the UK. Alongside this, in order to safeguard the rights of EU citizens currently living the UK, the UK government has invested millions in devising an EU Settlement Scheme to enable EU citizens living in the UK to apply for immigration status. Given the huge investment in this project, leaked government documents have indicated that the UK government will not seek to cancel the EU Settlement Scheme, even in the event of a no deal Brexit. So this is very good news indeed for dual US/EU citizens living in the UK.

How will the EU Settlement Scheme help dual US/EU citizens living in the UK?

If you are a dual US/EU citizen living in the UK, you will soon be able to submit a digital application to apply for immigration status under the UK Immigration Rules. The application will be open to any dual US/EU citizen living in the UK in any capacity. If you have not yet resided in the UK for five years, you will be granted limited leave to remain (temporary permission to stay) for up to five years. After you have resided in the UK for five years, you will be eligible to apply for indefinite leave to remain, subject to meeting the absence requirements, criminal and security checks. If you have already resided in the UK for at least five years, then you can apply under the Scheme for indefinite leave to remain straightaway. Further details of this new Scheme can be found HERE.

The new Scheme is currently being piloted by a number of health trusts in the UK to test its robustness and to ensure it is fit for purpose. It is due to be fully open by 29 March 2019. As there are predicted to be more than 3.5 million eligible citizens applying under the Scheme, it is important that the application process is as streamlined and simple to use as possible.

The government has recently published some guidance documents regarding the application.

What rights will dual US/EU citizens travelling to the UK after Brexit day have to live and work in the UK?

Under the terms of the draft withdrawal agreement, if you are an EU citizen arriving in the UK post 29 March 2019 and before 31 December 2020, you will have the right to travel to the UK to take up work and will need to apply for limited leave to remain under the EU Settlement Scheme.

What if I arrive in the UK after 31 December 2020?

At the present time the UK government has not announced what immigration scheme will be in place for EU citizens arriving in the UK after 31 December 2020. In July this year the UK government published a White Paper outlining the country’s vision for the UK’s post-Brexit relations with the European Union.

The key points included the following:

• The UK would end freedom of movement with the EU after a transition period that would last through December of 2020. The UK would “seek reciprocal mobility arrangements” with the EU, in line with agreements the country would reach with other close trading partners.

• The UK would work to establish travel arrangements with the EU such that UK and EU citizens would be able to travel to each other’s countries for short-stay business or tourism without obtaining a visa. Such arrangements would only permit paid work in “limited and clearly defined circumstances” in line with the UK’s current business visa policy.

• The UK would work to establish similar reciprocal provisions for intra-corporate transfers, aiming to permit UK and EU-based companies to “train staff, move them between offices and plants and to deploy expertise where it is needed.” Such arrangements would also be based on existing arrangements the UK currently has with non-EU countries.

• The UK will also discuss how to facilitate temporary mobility of scientists and researchers, self-employed professionals, employees providing services, as well as investors.

• The UK would honour a previously reached agreement that the 3.5 million EU citizens in the UK and the 800,000 UK nationals in the EU will be able to “move, live and work on the same basis as now” through to the end of the transition period covered by the Withdrawal Agreement.

A further announcement is expected later this year and details of a new immigration scheme will be widely publicised at that time.

This article was written by Janette Protheroe and Kim Vowden in Kingsley Napley LLP’s immigration law team. To find out more, see www.kingsleynapley.co.uk/

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