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Where will the burden of proof lie for EU citizens demonstrating their rights after Brexit?

Author: Madeleine Sumption, University of Oxford

The UK and EU have agreed the basic principles of what will happen to EU citizens already living in the UK after Brexit, but the legal status of many EU citizens will depend on how generously or strictly the rules are implemented, the Migration Observatory at the University of Oxford said today.

In a new report published today – The Burden of Proof: How Will the Application Process Work for EU Citizens After Brexit? – the Migration Observatory examines the choices involved in designing an application system, including whether the Government will give EU citizens the benefit of the doubt if they can’t provide ‘official’ documentation showing they have been living in the UK.

After Brexit, EU-citizens will have to prove that they have been living in the UK for five years and do not have serious criminal records in order to legally remain in the country.

The current system for applying for permanent residence has taken a relatively strict approach to the evidence EU citizens and their family members can provide. In the 15 months after the referendum, 54,000 (or 23% of) applications were either rejected or sent back to applicants as invalid.

The Government has proposed a simplified application process that should allow the majority of EU citizens to demonstrate their status relatively easily.

But the report explains that some eligible applicants will struggle to provide official documents showing they have been living in the UK. For example, people without bank accounts or formal leases may only have informal proofs of address such as letters from friends. It is not possible to estimate the number of people who would be affected but even if the percentage is very small, the size of the EEA national population (3.8 million) means that the total number could be significant.

The rules for this group of people could in theory be implemented in very different ways. A lower-cost, “light-touch” process would allow EU citizens to use a range of both official and non-official evidence to prove their status, while a more bureaucratic approach would focus on making sure that every EU migrant definitely meets all of the criteria.

Madeleine Sumption, Director of the Migration Observatory at the University of Oxford said: “Most EU citizens should have little trouble getting their status resolved if the simplified system the Government has proposed goes ahead. But there are still big questions about what will happen to the minority who don’t have official evidence that they have been living in the UK. It’s impossible to estimate exactly how many this will be. But even if it is only a few percent of the total, the numbers of applicants affected would run into the tens or even the hundreds of thousands.”

Sumption added: “The registration process for EU citizens will be prone to controversy. Any indication of fraud would be quick to hit the headlines, but if the burden of proof is high and eligible people lose their legal status, this will also undermine trust in the system.”