Brexit – impact on the rights of EU citizens in the UK

The results of the EU referendum have undoubtedly left many EU citizens confused as to what the future holds for them and their families in the UK. While things may change in the long-term, it is important to remember that the current EU legal framework will continue to apply until the exit negotiation process is concluded and Britain formally reaches an agreement with the European Union on its position, something which is expected to take a minimum of two and a half years, so as to possibly be effective from 1 January 2019.

Right of entry and residence in the UK

EU citizens have an initial right to enter the UK for a period of 3 months, following which they must be a ‘qualified person’ to remain here lawfully. The ‘qualified person’ is broken down into five categories: jobseeker, worker, self-employed, self-sufficient and student.

It is important to note here that following a recent amendment to the Immigration (EEA) Regulations, an EEA national coming to the UK to look for work can only retain the status of a jobseeker for 91 days before having to show genuine prospect of being engaged for work. Therefore, an initial right of residence of 3 months in addition to the 91 days of residence as a jobseeker will allow an EEA national a period of 6 months to secure employment in the UK.

Registration Certificate

EEA nationals currently residing in the UK and exercising Treaty rights as qualified persons can (but are not obliged to) apply for a Registration Certificate to confirm their status. Non-EEA family members and non-EEA extended family members of EEA nationals will continue to be able to apply for an EEA Family Permit to join the EEA national in the UK and thereafter for an EEA Residence Card to remain here for as long as the EEA national is exercising Treaty rights as a qualified person.

While these documents are not mandatory to confirm the right to reside under the Citizens Directive, they can be useful to show lawful residence in the UK, particularly for EEA nationals wishing to apply for permanent residence.

Non-EEA family members of EEA nationals are strongly encouraged to apply for their respective documents as they are usually the only proof that is available to them to confirm their legal status in the UK.

Permanent Residence

An EEA national who has been living lawfully in the UK for 5 years is automatically deemed to have acquired Permanent Residence, which is akin to indefinite leave to remain (ILR) under UK immigration rules. Both of these confer the same status upon their holders, namely the right to reside permanently in the UK free from immigration restrictions such as time limits. However permanent residence is assessed under EEA law and is granted to EEA nationals and their family members. In contrast, indefinite leave to remain is assessed under national immigration law and is granted to non-EEA migrants that meet the requirements of their respective immigration routes if they lead to ILR.

Applying for a Permanent Residence card is a complex process as applicants are required to tender a number of documents for consideration. The application costs £65 pounds and once the application is submitted it can take up to six months for a decision.

While applying for this document is not mandatory, following the EU referendum, EEA nationals and their family members may find it useful to have a document certifying their right to permanently reside in the UK. We underline however that permanent resident status can be lost if EEA nationals leave the UK for more than 2 years.

Applying for British Citizenship

EEA nationals and their family members who do not wish to apply for British citizenship for personal reasons or if they are not allowed to have dual citizenship, can remain in the UK as long as they are exercising Treaty rights as qualified persons or have automatically acquired permanent residence while the current EEA regime is applicable to the UK. It is anticipated that EEA nationals unable to meet the 5-year residence requirement needed to acquire permanent residence by the time the UK formally leaves the EU will be permitted to remain here until they qualify for this status under any future transitional provisions.

For EEA nationals who would like to naturalise as British citizens for a better peace of mind, the application currently costs £1,236 and takes approximately six months to be considered. Applications for British citizenship are considered under the provisions of national legislation contained in the British Nationality Act 1981 as opposed to any EEA laws and regulations. In practical terms, this means that if citizenship is granted, your status in the UK will not be affected by any changes in EEA law and its application to the UK.

To make a successful British Citizenship application, EEA nationals are required to show among other things that they are free from any immigration restrictions for a period of twelve months.

As we have mentioned above, permanent residence for EEA nationals is something that is acquired automatically by operation of law rather than the existence of an immigration document confirming this status.

As a result of the British Nationality (General) (Amendment No. 3) Regulations 2015 (SI 2015/1806), EEA nationals wishing to apply for British citizenship must first obtain a permanent residence card.

The two separate requirements under the amended regulations are:

a.    to have held permanent residence for 12 months; and

b.    be in possession of a permanent residence card prior to the naturalisation application.

To put this into context, an EEA national who has been living in the UK for 7 years and has not applied for a permanent residence card automatically acquired permanent residence at the end of the 5th year. If they were to submit an application for a permanent residence card now they would have to wait for 6 months for it to be issued.

However, they do not have to wait for a further 12 months from when the card is issued to submit a naturalisation application. The 12-month period of residence required to apply for citizenship under nationality law commenced at the end of the 5th year of residence when the EEA national acquired permanent residence automatically. Thus the 12-month requirement to apply for citizenship was met at the end of the 6th year. In these circumstances, the naturalisation application can be submitted as soon as the permanent residence card is issued. 
While it is unclear whether the recent change in nationality law is lawful, the reality is that the Home Office will enforce the requirement to hold a permanent residence card at the time of application for naturalisation until the legality of this provision is examined in court by means of a judicial review.

A few words of advice.
While the implications of the Brexit vote remain uncertain, the current legal framework will continue to apply for the next two years plus until the UK has formally reached an agreement on its position outside the EU. It is likely that transitional arrangements will be put in place afterwards to ensure that all EEA nationals currently exercising Treaty rights in the UK will be treated fairly. 
In view of the above, we would advise EEA nationals to seek legal advice on their options and to consider regularising their status where possible. Please contact our specialist lawyers to obtain more information.

Demetris Demetriou