The UK government has released the Policy Paper on its proposed plans for managing the immigration status of EU nationals in the United Kingdom following the UK's departure from the European Union. There is no immediate impact on EU nationals in the United Kingdom as the content of this Policy Paper is only a proposal at this stage.

Proposals Under the Policy Paper
The Policy Paper proposes that residence documents obtained by EU nationals and their family members under the current regulations be deemed invalid once the United Kingdom leaves the European Union.

The government has confirmed that a new modern and simple application process will be put in place following the UK's departure from the European Union.  It is anticipated that the new process will mandate that all EU nationals residing in the United Kingdom register with the UK government within two years. This process will operate separately from the current system to certify the rights of EU nationals in the United Kingdom.

The government has also indicated that the eligibility criteria for residence status will be modified accordingly, e.g., removal of the requirement for comprehensive sickness insurance for economically inactive EU nationals. Under the proposed system, the documentation issued once an application is approved will confirm the holder's right to resides as well as the right to work in the United Kingdom.

EU nationals currently present in the United Kingdom will not be required to complete this new application process before the UK's departure from the European Union.  However, the new system will be available before the date of formal separation to allow those affected to apply as soon as possible.

Irish nationals will not be impacted by this proposal, given that the Ireland Act 1949 regulates the relationship between Ireland and the United Kingdom and predates both parties' membership in the European Union.

What This Means for Employers and Foreign Nationals
While there is no immediate impact on EU nationals in the United Kingdom, it is anticipated that this announcement may cause further distress and confusion among this population.

The content of this Policy Paper is only a proposal at this stage, and it will likely be subject to further negotiation. This also leaves the UK government open to political and legal challenges from a range of parties, including the European Commission, advocacy groups as well as EU nationals themselves.

Since the EU referendum, the UK government has strived to assert its position that any legal challenges and decisions regarding the UK's treatment of EU nationals following the UK's departure from the European Union will rest with the UK courts, although the European Commission is unlikely to accept that.  However, the UK courts have an established track record of deciding against the government when they attempt to impose retrospective immigration policies, e.g., the successful challenge brought against the government's decision to change the settlement period of the Highly Skilled Migrants Programme.

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This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to londoninfo@fragomen.com.

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