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The impact of Brexit on the residence and working rights of EU citizens in the UK

Following the outcome of the referendum, many businesses are concerned that they may lose the skills and expertise of staff engaged from the EU. Our employment specialist, Omer Simjee explains the current legal status of EU staff and provides some tips on helping them protect their right to continue to work and live in the UK.

Current UK immigration rules for citizens of EU member states

One of the fundamental principles of EU law is freedom of movement and establishment, under which citizens of all EU member states have the right to freedom of movement for workers within the EU.

Under the present law, while the UK remains a member of the EU, citizens of EU states have the right to enter and remain in the UK. As this is a right that derives from EU law, they do not require a permit from the UK to exercise that right. However, once resident in the UK, they may apply for a registration certificate that proves that they are exercising their rights to live or work in the UK.

EU citizens who have resided in the UK for five continuous years acquire the right of permanent residence in the UK. After a further 12 months of UK residence, a holder of permanent residence may apply for British citizenship.

The effect of Brexit on UK visa rules for EU citizens

The rights of EU citizens to move freely to and live and work in the UK are based on EU law. When the UK leaves the EU, those rights will therefore fall away.

It is not yet clear whether the UK would (or could) negotiate special agreements with the EU or other individual states to deal specifically with the right of their citizens to live and/or work in the UK. The possibilities, as I see them, are:

  • The UK will enter into agreements with the EU or with Ireland and other individual EU countries that will allow their citizens to live and work in the UK either on a wholly visa-free basis or a less restrictive basis than applies to other countries. For example, such agreements may allow citizens of other EU countries to come to the UK if they have a pre-existing job offer in the UK or are financially independent of the UK state
  • There will be transitional arrangements under which EU citizens and their families who are resident in the UK and have been UK resident for a specified minimum period or are in full-time employment will be given visas to remain until their employment or residence ceases. New EU entrants to the UK will need to have a visa in the same way as non-EU citizens do now or will have new rights under new agreements negotiated between the UK and their home countries
  • There will be no transitional arrangements and no useful agreements will be negotiated. Instead, within a specified period, all EU citizens will need to apply for fresh visas using the existing non-EU visa categories and leave the UK if they are not granted. New entrants to the UK will need to have a visa in the same way as non-EU citizens do now. In my opinion, this is an unlikely outcome as it would cause chaos in the employment and financial markets and probably breach human rights law in many instances.

What can EU staff living in the UK do to safeguard their positions?

At present, the UK remains a member state of the EU and unless and until exit actually occurs, their rights to live and work in the UK should not be affected. The position after Brexit takes place is not yet clear and will depend upon what arrangements are put in place by the UK Government. However, there are some steps they may be able to take now to put them in a better position. They are:

  • EU nationals that have been resident in the UK for five years or more can apply for a permanent residence card. This shows that they have a right of permanent residence in the UK. The right is derived from EU law but in my view it is unlikely that permanent resident status will be withdrawn from EU citizens who have acquired it.
  • To apply for a certificate of permanent residence, individuals will need to complete an application form and provide documentary evidence proving that they have been living and exercising their EU Treaty rights in the UK for the past five years, together with a fee of £65.
  • Family members may also qualify for permanent residence if they meet the requirement. They will need to complete their own separate application forms.
  • EU nationals that have been resident in the UK for less than five years can apply for a registration certificate showing they are exercising their EU rights to be in the UK. In the event that the UK enacts transitional rules that allow EU citizens who are resident at the time of Brexit to remain in the UK, such a certificate may be useful in showing UK residence.
  • To apply for a registration certificate, individuals will need to complete an application form. This form is then submitted to the Home Office with the relevant supporting documentation and an application fee of £65. Alternatively, they can make the application in person at the Croydon Premium Service Centre for an additional charge. The application will be assessed on the same day if they elect to use the premium service.
  • Direct family members (for example husband and wife) may also qualify for a registration certificate or a residence card as a family member of an EU national. The application process is similar to an EU national’s.
  • EU nationals who already have permanent residence can apply for naturalisation as a British citizen. Citizenship has advantages over permanent residence as it cannot be withdrawn, whereas permanent residence may cease if the holder ceases to have a home in the UK.

Irish Citizens

The UK has a Common Travel Area (CTA) with the Republic of Ireland that predates its entry into the EEC/EU. The CTA allows free movement between the UK and Northern Ireland and UK. There have been various assurances from pro-Brexit politicians that following exit, the CTA would remain in place. This would allow Irish citizens continued freedom of movement between the UK and Ireland. However, this is subject to further discussion between the UK and Ireland as exit arrangements are negotiated and put in place.

Other countries

Switzerland is not a member of the EU or European Economic Area and Norway, Iceland and Liechtenstein are members of the EEA but not the EU. However, each of these states has entered into reciprocal agreements with the EU regarding free movement. I assume that the post-Brexit UK immigration arrangements for citizens of Switzerland, Norway, Iceland and Liechtenstein will be the same for as for citizens of EU states.

Summer 2016

Download Summer 2016 issue (pdf)