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EU citizens and their family members living in the UK under EU law are at risk of ‘falling through the cracks’, with their rights of future residence in question after Brexit, researchers say.

The study, led by the University of Birmingham, found the nature and quality of rights of many EU citizens and their future residence in the UK would be thrown into question, particularly for children, whose status is dependent on their parents.

The study, EU families and “Eurochild­ren” in Brexiting Britain, considered two legal scenarios after Brexit:

  • ‘No deal’ scenario, with the UK leaving the EU on 29 March 2019 without a withdrawal agreement and no new laws being passed. In this case the default legal position would be that all the people living in the UK under EU law would suddenly become unlawfully resident. This scenario would expose affected individuals to the full force of the UK government’s “hostile environment”, meaning it would immediately become a criminal offence to work in the UK and access to services including healthcare, bank accounts, rented accommodation and more would be restricted.
  • ‘Settled status’ scenario, based on the EU-UK withdrawal agreement. Leaving aside that ‘nothing is agreed until everything is agreed’ and assuming that the December agreement is ratified by both parties, a sizeable number of EU families and their children are likely to fall into the cracks of the legal system. The researchers found that while ‘settled status’ would improve the situation for children born after Brexit and reduce the administrative barriers to naturalisation for adult EU citizens, this status would not have a retrospective effect, leaving many in legal limbo.

Dr Nando Sigona , Director of the Eurochildren study, University of Birmingham said:

‘The consequences for children are severe and to date largely overlooked. Children will be wholly dependent on their parents to apply for the new types of status.

‘Where parents fail to do so, or for some reason do not qualify, children will lose their lawful status under EU law and drift unknowingly into illegality’.

The researchers highlighted that Brexit posed a number of questions on rights to residence and nationality for EU families in the UK.

Barrister, Colin Yeo, author of two legal briefings in the Eurochildren study explained:

‘There are a number of serious problems facing EU families in the UK after Brexit. Prior to Brexit these problems already existed but were largely hidden.

‘They could be fudged or overlooked because these cracks were smoothed over by ongoing rights of free movement.

‘After Brexit, the cracks will be exposed, some EU citizens and family members will fall through those cracks and others will be forced to make uncomfortable binary choices.’

The study highlights that although the majority of EU citizens and their family members currently resident in the UK will probably be able to retain ongoing lawful residence in the ‘settled status’ scenario, this will not be the case for all those affected by Brexit.

Several additional questions remain unresolved by the EU-UK December (Phase 1) and March (Transition) agreements. In particular, historic problems with the interaction of British nationality law and the UK interpretation of EU law would likely deprive many EU citizens of their entitlement to the acquisition of citizenship.

Colin Yeo added:

‘It is likely that substantial numbers of EU citizens do not acquire the new temporary and settled statuses. Still more will face obstacles acquiring British citizenship’.

‘Where EU citizens do not acquire the new temporary and settled statuses, they and potentially their families will become unlawfully resident, and will then face hostile environment measures, exploitation in the labour and housing markets and ultimately, removal from the UK.