The central plank of the paper is the government’s assertion that free movement rights ‘will come to an end’ and therefore will not be ‘carried forward, as an EU legal right, into the post-exit UK legal regime’ (page 7, para 14). This means that, from the exit date, EU nationals and their family members would no longer be covered by EU law. Instead, the government has expressed its intention to create ‘new rights in UK law for qualifying EU citizens resident’ in the UK before its exit (page 4, para 6), which it insists should not be subject to the jurisdiction of the Court of Justice of the European Union (CJEU).

In order to avoid a ‘cliff-edge’, the government plans to introduce a ‘blanket residence permission’ for all EU nationals (lawfully resident) for a period of at least two years to start immediately after the UK’s exit (page 9, paras 24 and 26). At the latest upon expiry of that period, EU nationals and their family members would need to regularise their status in order to be allowed to remain.

According to the position paper, EU citizens will be granted settled status (indefinite leave to remain) – subject to criminality checks – if they have been resident in the UK before the ‘specified date’ and have completed five years’ continuous residence in the UK. The ‘specified date’ is to be ‘no earlier than the 29 March 2017, the date the formal article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU’ (page 5, para 6).

Those who arrive before the specified date and have not accrued five years’ residence will need to apply for temporary status and can apply for settled status once they have accrued five years’ continuous residence. EU citizens who arrive after the specified date ‘will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status’ (page 4, para 6; emphasis added). Their status will depend on unspecified future Immigration Rules.

Economically inactive EU citizens will not need to have held ‘comprehensive sickness insurance’ as a requirement of obtaining settled (or temporary) status (page 4, para 6 and page 8, para 22).

The proposal sets out that ‘[f]amily members of eligible EU citizens (who can be either EU citizens or non-EU nationals) who are resident in the UK before we leave the EU will also be eligible to apply for settled status, provided that they too meet the criteria above and have been in a genuine relationship with an eligible EU citizen while resident in the UK. Family members who do not yet have five years’ residence will also be eligible to apply for permission to stay (“leave to remain”) to enable them to accrue these’ (page 10, para 29; emphasis added).

On a number of issues, the government’s proposal is at odds with the EU position (as set out, inter alia, in the EU position paper on Essential principles on citizens’ rights (12 June 2017) and the Joint technical note on the comparison of EU-UK positions on citizens’ rights of 19th July 2017 (JTN), published 20 July 2017). First, the EU will not accept a ‘specified date’ that predates the UK’s actual exit from the EU (JTN, page 1).

Second, the EU insists that EU citizens in the UK should retain their existing EU rights after Brexit, in particular the right to be joined by family members after the date of the UK’s withdrawal (JTN, page 3). The UK’s proposal, on the other hand, seeks to strip EU nationals of such EU family reunion rights and subject them to considerably more stringent national requirements as contained in the current Immigration Rules including the minimum income requirement1See, inter alia, case note on R (MM (Lebanon)) v Secretary of State for the Home Department and other appeals [2017] UKSC 10 at May 2017 Legal Action 32. and the adult dependent relative rule, which (in contrast to currently applicable EU law) makes family reunion with adult dependent relatives extremely difficult, if not virtually impossible.

Interestingly, the UK’s approach of treating EU nationals under the envisaged new ‘national’ regime and insistence that ‘[f]ree movement rights will come to an end … as an EU legal right’ (Cm 9464, page 7, para 14) within the UK contrasts with its demand that UK nationals in one particular EU country be able to continue relying on their EU free movement rights in relation to all remaining 27 EU countries rather than having their residence rights restricted to the EU country they actually live in (JTN, page 9).2‘UK nationals in scope should be able to change their place of residence within EU27 as per Directive 2004/38’ (emphasis added).

Other issues of contention are the CJEU’s post-Brexit role, who should be policing the withdrawal agreement (the EU considers the European Commission, the UK favours an ‘independent monitoring arrangement’ (JTN, page 4)), the UK’s insistence on EU nationals applying for the new residence documentation (including those that already hold permanent residence cards) compared with the EU’s position that such documents are of a declaratory nature and hence discretionary (JTN, page 7). These issues will, no doubt, need to be resolved in future negotiations.