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Brexit Immigration Analysis
In a letter dated 29 March 2017, the Prime Minister notified the President of the European Council of the UK’s intention to withdraw from the EU, in accordance with Article 50 of the Treaty on European Union (TEU) (as inserted by the Treaty of Lisbon). This followed the outcome of the referendum on 23 June 2016.
On 30 March 2017, the Government then published a White Paper on the Great Repeal Bill entitled ‘Legislating for the United Kingdom’s withdrawal from the European Union’. This sets out how it intends to legislate for the withdrawal from the EU and explains that EU law is to be converted into domestic law on the date the UK formally leaves the EU:
‘The same rules and laws will apply on the day after exit as on the day before.’
On 31 March 2017, the European Council issued draft guidelines setting out the overall position and principles the EU will pursue and defining the framework, from the EU’s perspective, for negotiations under Article 50 TEU.
The Prime Minister, Theresa May, then announced her intention that a general election should take place on 8 June 2017.
Subject to the outcome of a general election, the next stage in the Brexit process is that formal negotiations must take place concerning the arrangements for the UK’s withdrawal. According to the TEU, the withdrawing country’s membership of the EU will automatically end two years after Article 50 is triggered, unless an exit agreement is reached or an extension to the negotiating period is approved.
Both sides have signalled a desire for negotiations to proceed as quickly as possible and the Prime Minister’s ambition is to achieve a favourable exit agreement within the two-year period. As such, whilst it is highly unlikely that the enormously complex issues involved could be resolved earlier, it is increasingly likely that the UK will have withdrawn from the EU by spring 2019.
It is extremely important to note that the triggering of Article 50 does not alter the status of EEA nationals who are living in the UK. The White Paper confirms that we can expect new immigration legislation relating to the status of EEA nationals but that there will be no changes until after the UK has left the EU. The Government is working on the detail and we expect there to be a consultation in the near future.
Of course, the detail is also now subject to the outcome of the 8 June 2017 general election.
What does this mean for EEA nationals and their family members who are living in the UK?
Under EU law, EEA nationals (and their qualifying family members) are lawfully entitled to live in an EU member state for more than three months providing the EEA national is exercising Treaty rights. This means that they must be employed, self-employed, retired or job-seeking, or be studying or self-sufficient and possess comprehensive sickness insurance. (We have explained comprehensive sickness insurance here.) After five years exercising Treaty rights in accordance with EU law, they automatically acquire permanent residence.
EEA nationals and their direct family members do not have to apply for any kind of document to confirm their right to reside in an EU member state. In the UK, an application can be made to the Home Office pursuant to The Immigration (European Economic Area) Regulations 2016 for a residence or permanent residence card or certificate confirming the right to reside in the UK. The Home Office fee is £65 per person.
Those who wish to become British citizens must hold a document confirming that they acquired permanent residence at least 12 months before making the application.
The Regulations are domestic legislation setting out the UK’s interpretation of its obligations under EU law, namely Directive 2004/38/EC (commonly referred to as the ‘Citizens’ Directive’ or ‘Free Movement Directive’).
Whilst EU law will no longer apply in the event that the UK leaves the EU, it is clear from the White Paper that, at least in the immediate aftermath of Brexit (and possibly for some time into the future), EEA nationals and their family members will be able to continue to reside in the UK in accordance with the Regulations. To put it another way, free movement could continue for some time to come.
The White Paper does state that there will be a new immigration bill. This will set out the new immigration system post-Brexit and should also deal with the time-frame and transitional arrangements. The detail of this new legislation is of course yet to be decided and subject to the outcome of the general election.
Should an application for a residence document be made?
The Government’s latest position, as adopted in April 2017, is to state that EEA nationals and their direct family members ‘do not need to do anything as a result of Article 50 being triggered. This will not change while the UK is part of the EU’.
However, because the Government has not yet explained in any detail how it will treat EEA nationals and their family members in the event that the UK leaves the EU, such limited statements do little to ease concern. This is especially so given that the Home Office’s own data shows that it refuses significant numbers of applications for residence documents because it does not accept that the EEA national or their family member is residing in the UK in accordance with the Regulations.
We advise that EEA nationals who wish to remain in the UK on a long-term basis check their personal circumstances now to ensure that they are currently residing in accordance with the Regulations. If eligible, we advise that those who are particularly anxious to have evidence of their lawful status in the UK consider applying to the Home Office for a residence/permanent residence card or certificate.
Whilst there can be no certainties until the Government confirms what the new immigration system will be, we think that possessing evidence of lawful residence in the UK issued by the UK Government pursuant to its domestic Regulations may provide more security than not having a document. The Government may, for example, introduce transitional arrangements in relation to individuals who possess such a document.
Unfortunately, situations regularly arise when an EEA national who believes they have been exercising Treaty rights and/or have acquired permanent residence subsequently discovers that this is not the case or that the Home Office does not accept their position. The status of family members can also be unknowingly placed at risk.
For example, an EEA national enters the UK in 2010 and immediately starts to work. In 2012 they stop work and decide to rely on their savings for a year. They do not obtain comprehensive sickness insurance (CSI). They resume employment in 2013 and apply for a document certifying permanent residence in 2015. The application fails because they did not hold comprehensive sickness insurance during the period of time they were relying on their savings.
In the example above, whilst the UK is a member of the EU, the EEA national will be able to remain in the UK on a lawful basis because they are still exercising Treaty rights as defined by EU law, having resumed work in 2015. Although they will not be able to obtain a document certifying permanent residence, because of the period of time when they did not hold CSI, they can apply for a document from the Home Office confirming that they are lawfully entitled to reside in the UK.
Information on the various applications that are available to EEA nationals and their family members can be found on the personal immigration pages of our website.
What steps can UK employers and education providers take?
Whilst the Government has not yet set out new rules for employers and education providers, we believe that it may require them to register their EEA workers and students (including family members who have been relying on EU law). It is possible that it may use the current system of sponsor licensing to do this or something similar to the WRS scheme.
Whether or not the employer or education provider will be required to carry out checks to ensure that the individual is lawfully resident, in accordance with the UK Government’s interpretation of EU law, remains to be seen. One would hope that a broad-brush approach would be adopted.
For now, we would advise that employers and education providers start the process of assessing the breakdown of their workforce/student population so they know who is currently reliant on the UK’s membership of the EU, both in terms of the principal EEA national and also family members. We would also recommend that information is provided to EEA national employees/family members about how to obtain residence cards and documents from the Home Office if they wish to do so.
Many of our clients, including businesses, universities and schools, have asked us to assist them with their Brexit preparation strategies.
We can assist by:
- running workshops and seminars for HR staff and EEA employees;
- analysing the organisation’s workforce data and prevention of illegal working strategies and providing feedback and support;
- providing assistance with the preparation of relevant applications for individual employees and their family members;
- providing advice where necessary on alternative immigration options; and
- offering tailored services to meet specific requirements.
If you require legal assistance or would just like to discuss your situation with one of our experts on a no-obligation basis, please call us.
You can find further information on Brexit here.