Brexit: which EU citizens will have the right to stay in the UK?

“Five out of six migrants who are here either already have indefinite leave to remain or ​will have it by the time we depart the [EU]”

David Davis, Brexit Secretary, 10 October 2016

This isn’t fully substantiated by the evidence we’ve seen. A high proportion of EU citizens in the UK are likely to be entitled to a special status under EU law by the time of Brexit, but whether that matters afterwards depends on what Mr Davis and his colleagues in government decide.

There are figures to suggest five out of six citizens of EU countries, living here at the moment, could have clocked up five years of living here by the time the UK leaves the EU. That would make them eligible for ‘permanent residence’, provided they meet other criteria too.

But we don’t know how many people will actually be eligible even if this does play out, we don’t know how many will leave before then, and we don’t know whether this status would be recognised after the UK leaves.

No matter what the exact outcome, it’s important to stress how politically unlikely it is that current EU expats would be deported en masse. The issue is more about the exact rights people will have after Brexit.

The right to permanent residence under EU law may or may not survive Brexit

Citizens of other EU countries get the right to stay in the UK indefinitely if they’ve lived here legally and continuously for five years . They have to meet certain criteria to qualify, broadly speaking whether they’re working, looking for work, self-employed, studying or self-sufficient. People can apply for a card as proof of permanent residence, although at the moment they don’t have to.

Permanent residence as a concept comes from EU law, as opposed to ‘indefinite leave to remain’ which is the route to settlement for non-EU citizens. When the UK leaves the EU, ‘permanent residence’ status will no longer apply here unless the government chooses to recognise or replace it.

Experts point out it may be politically or legally difficult for the UK government to remove the status altogether.

We don’t yet know what arrangements the UK government will make when the UK leaves the EU.

Up to five out of six might have permanent residence by the time of Brexit

While we haven’t received a confirmation from the government, Mr Davis may be using analysis by the Migration Observatory at the University of Oxford from August 2016.

It found that up to 84% of EU citizens in the UK are potentially eligible for permanent residence, based on when they first arrived in the UK.

By the start of 2016, almost two-thirds of people from European Economic Area countries and Switzerland had first arrived here at least five years ago. Another 8% were born in the UK.

If the UK remains in the EU for another two years, as now seems likely, that means people who’ve been here for three years so far could become eligible by then too. Add them in and you’re left with five out of six of EU citizens living here right now who could have the necessary years clocked by the time the UK leaves.

It’s a far cry to then say that means five out of six have or will have the right to stay here indefinitely. We don’t actually know exactly how many people have permanent residence now or will in the future, and proving the right is a challenge in itself.

People who haven’t continuously met the criteria for permanent residence won’t be eligible, for example, and others may have a hard time assembling the paperwork needed to prove the length of their stay or their employment.

About a third of applications for permanent residence are refused or declared invalid each year. The Migration Observatory says these rejection levels aren’t unusual in the UK visa system, but they are much higher than applications for indefinite leave to remain by citizens from outside the EU.

It’s also worth flagging that Mr Davis was only talking about citizens of other EU countries here today, not the population of EU citizens who’ll be here when the UK leaves. People who arrive and stay in the UK over the next two years will likely add to the numbers who aren’t eligible, and some who are already here will leave.

Again, this all depends on whether the UK government chooses to replace permanent residence with a similar concept following Brexit, and we don’t yet know its position. The issue will be part of the upcoming Article 50 negotiations.

Even if there wasn’t an explicit agreement, and what happens is entirely up to the UK, there is no political appetite for deporting EU citizens. The challenge isn’t so much the bare right to stay in the country; it’s guarantees on equal access to things like healthcare, jobs and benefits.

Mr Davis has said that “it is the intention that [EU citizens] will have a generous settlement, pretty much exactly what they enjoy now, and our British citizens abroad will do the same”.