At last the British Government is putting in place a framework for the negotiation of Brexit, and preparing for a post-Brexit regime. There has been a flurry of statements, papers and notes since the beginning of the year. Some of them have a direct effect on EEA nationals living in the UK now. Most important are the Home Office's guidance notes on EEA nationals’ rights of residence.
These notes do not change the rules for EEA citizens now, but make it clear how the Home Office will apply them in future.
They show that the Government’s approach is likely to be harsher than in the past.
In particular, there is an intention to crack down on EEA nationals attempting to circumvent the Immigration (EEA) Regulations 2016. In certain circumstances, existing powers could be used to remove individuals from the UK and/or refuse them re-entry.
What does this mean for you if you are an EEA national in the UK?
If you are currently living in the UK, you are doing so under EU law, which means you fall into one of the three categories:
1. Initial rights of residence
This category is generally for new arrivals or people who spend short amounts of time in the UK. Under the regulations, an EEA national and their family members can stay in the UK for up to three months, providing they hold national identity cards or passports issued by an EEA state.
There are no special conditions or formalities except that you are now expressly required not to become an “unreasonable burden on the social assistance system of the UK”.
2. Extended rights of residence
You are only permitted to continue to live here beyond the three-month period if you can prove that you are exercising your EU Treaty rights as a “qualified person”.
You are a “qualified person” if you are a jobseeker, worker or self-employed. You can also be self-sufficient, a student, or otherwise economically non-active, but if so you must have comprehensive sickness insurance cover to remain in the UK.
3. Permanent rights of residence
You may have already obtained permanent residence if you have lived in the UK continuously for five years. Permanent resident status is guaranteed by EU law, regardless of whether you have a document from the Home Office certifying it.
If you do not fall into the categories above you may be in breach of immigration rules. This could have detrimental effects on your ability to enter or live in the UK in future.
We urge all EEA nationals, in particular self-sufficient persons and students, who are currently living in the UK to speak to their legal advisers and determine their rights of residence as soon as they can.
This note is an overview. If you would like further advice as to the impact of Brexit on you or your family, please contact us.
Ben Xu, Solicitor
Published: 3 April 2017
A moment of clarity
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