IMPACT – HIGH

The European Union and the United Kingdom have reached a deal on phase one Brexit issues, with the U.K. making key concessions on the rights of EU citizens in the U.K. and agreeing to avoid formation of a hard land border between Ireland and Northern Ireland, and both parties agreeing to the methodology of a financial settlement.

EU and U.K. negotiators issued a 15-page joint report Friday detailing the agreement in principle and the commitments of each side to be reflected under a full withdrawal agreement. The agreement allows the negotiators to move on to phase two talks dealing with trade.

Key immigration-related provisions are summarized as follows.

Citizens’ rights:

  • Freedom of movement will continue until the date of the U.K.’s official withdrawal from the EU. Any EU nationals who are in the U.K. and exercising free movement rights on that date will have their rights preserved. This includes their ability to bring certain family members to join them after the official withdrawal, including family members “in the ascending line” (for example, parents) but excluding unmarried partners who fall under the “durable relationship” provision. For unmarried partners, only those who were either residing with the EU national at the time of official U.K. withdrawal from the EU will have their rights under EU law preserved. All others will fall under domestic law and come under the agreement to “facilitate entry” only if the relationship was durable at the time of the U.K.’s withdrawal. This is likely to mean that partners of EU nationals joining after Brexit will be subject to the U.K.’s tough domestic rules (which currently only apply to British citizens’ partners) requiring minimum income levels.
  • EU nationals will have their right to achieve permanent residence preserved if they are exercising treaty rights in the U.K. on the date of Brexit in March 2019. Those applying for status under the withdrawal agreement will benefit from the concept of evidential flexibility to ensure that errors or omissions do not disproportionately impact the outcome of an application.
  • EU law under the EU Court of Justice will continue to govern the rights of EU citizens and their family members residing in the U.K. on or before the date of Brexit. This will continue to apply after Brexit for a period of eight years.
  • EU citizens will have at least two years from the date of Brexit to apply for residence status under U.K. administrative procedures that must be transparent, smooth and streamlined. Periods of lawful residence before the U.K.’s withdrawal will be included in the calculation of the five years of accrued residency to qualify for residency. Existing EU law (EU Citizenship Directive) continues to govern eligibility.
  • EU citizens who have obtained a permanent residence document before the U.K.’s withdrawal will be able to convert that document into a new one after Brexit free of charge, subject only to verification of their identity, criminal background and ongoing residence.
  • EU nationals who have acquired permanent residence may be absent from the U.K. for up to five years without losing their status.

Ireland and Northern Ireland:

The agreement recognizes the unique challenges presented by the U.K.’s withdrawal from the EU and notes that this agreement will not predetermine the outcome of wider discussions. Nonetheless, the following principles are key:

  • The U.K. confirms that free movement with Ireland under the Common Travel Area will continue.
  • The Good Friday Agreement must be protected in all its parts. People of Northern Ireland may continue to be able to choose to be Irish citizens, British citizens or both; those who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland.
  • The U.K. remains committed to its guarantee of avoiding a hard border between Ireland and Northern Ireland.

BAL Analysis: The agreement provides greater certainty for EU citizens living in the U.K. (and British citizens living in the EU) regarding their current and future rights and should help them plan accordingly. In particular, the cutoff date for retaining EU rights will not be earlier than the date of withdrawal, meaning that all EU nationals in the U.K. and British citizens in the EU exercising treaty rights on the day of Brexit will have these rights preserved at least until they have gained permanent residence. (This is likely to be called “settled status” under the U.K.’s domestic regime). They will be permitted to bring family members even after Brexit and after the two-year transition period. They will have their EU permanent residence rights recognized by the U.K., which provides an incentive to apply now for permanent residency. Those who have not yet accrued the five years needed for permanent residency will gain residence status using streamlined procedures with evidentiary flexibility that prevents rejection based on administrative errors and omissions.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.

Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.