Hot on the heels of the House of Lords’ proposed amendment to the Brexit Bill to safeguard the status of EU nationals in the UK, the Select Committee for Exiting the EU has published a report stating that the current process for consideration of permanent residency applications is not fit for purpose and, in the absence of any concrete resolution to relieve the anxiety felt by the estimated three million EU citizens resident in the UK, it is untenable to continue with the system as it stands.’

At present, EU nationals who have been here for five continuous years in a qualifying status will have acquired permanent residence and, although it is not mandatory, they can and should apply for a document confirming that status (further guidance on this can be found here).  For those who easily meet all of the criteria (for example, because they have been in continuous employment for at least 5 years), the application process should be reasonably straightforward, although the questions asked as part of the process and evidential requirements are onerous and, we understand, there is an overall rejection rate of around 28%.  It is also unclear how the Home Office will cope with regularising the status of those 3 million EEA nationals prior to our departure from the EU (time estimates for completing the task under the current system range from 14 to 140 years).

In response to this, the Committee’s report recommends that the government should ‘now make a unilateral decision to safeguard the rights of EU nationals living in the UK’ and puts forward a number of ways in which the permanent residence process should be simplified including:

  • removing the requirement to list all absences outside the UK during the qualifying 5 year period. There is already a more streamlined online form available to some, although not all, types of applicant. This asks for a declaration as to whether the applicant has spent more than 6 months outside the UK in total in any one year since arriving in the UK.  Those who answer ‘no’ are able to proceed to the next question without having to provide full details but those responding ‘yes’ are required to list every absence. Providing a full list of absences is also still a requirement if the applicant’s status requires him/her to complete the paper form; and
  • removing the requirement to have held comprehensive sickness insurance for any time spent in the UK during the 5 year qualifying period as a student or self-sufficient person. Given that most EU students and self-sufficient people (including those who are the partners and spouses of British citizens) will not have been aware until recently that this is a requirement for lawful residence in the UK beyond 3 months, it is likely to account for a significant proportion of the rejected applications. The Committee recommends that mere access to the NHS during this period (as opposed to private medical insurance) should be deemed sufficient to meet the requirement;

The Select Committee report also asks the government to:

  • clarify the position for EU citizens who will not have been living in the UK for five years prior to the date that the UK leaves the EU.  It is this group who may feel most vulnerable and most in need of immediate guidance as to whether they will be able to acquire permanent residence in the UK at some point in the future; and
  • set a cut-off date for EU nationals arriving in the UK with those arriving before this date retaining the right to qualify for permanent residence after five years. This should by itself provide the necessary assurances to those in the group mentioned above.

Of equal importance to these practical recommendations is the Committee’s request that they be addressed as a matter of urgency.  Quoting evidence provided by Jonathan Portes, Professor of Economics and Public Policy at King’s College London, the Committee recognises the enormity of the task ahead, which includes arranging a legal process, providing guidance, administrative procedures, computer systems and recruiting or allocating staff to process applications. Professor Portes has also pointed out in his recent blog:

‘in practical terms, it wouldn’t commit the government to doing anything it won’t have to do at some point anyway. The fact that it hasn’t reflects a combination of bureaucratic inertia and political unwillingness to accept the inevitable consequences (for Home Office resources, for employers, and for individuals).’

This cross-party drive to introduce practical measures in addition to the principle of protecting the rights of EU nationals is obviously helpful but the extent to which the government will be willing to act on these recommendations, and when, remains to be seen.  This may become clearer once the House of Lords’ amendment is debated in the House of Commons on 13 and 14 March. In the meantime, EU nationals who are lawfully resident in the UK but who don’t yet qualify for permanent residence may take some comfort from the fact that, if nothing else, pragmatic and detailed consideration is being given to their plight.  They should also remain assured that the probable triggering of Article 50 itself later this month will not affect their right to remain in the UK at the earliest until we actually leave the EU in around 2 years’ time.

If you have any questions relating to this or any other UK immigration matter, please contact Annabel Mace, Partner and Head of UK Business Immigration.