The answer to the question ‘Can EU nationals be removed from the UK?’ is extremely complex, as with most areas of EU law.
New powers introduced on 1 February 2017
On 1 February 2017, the new Immigration (European Economic Area) Regulations 2016 (the Regulations) came into force. These gave the Home Office a number of new powers, including in relation to the removal of EU nationals in certain scenarios. The Home Office published a number of new and updated policy documents shortly after setting out how they may implement their new powers in practice.
Whilst the future position of EU nationals in the UK unfortunately remains the subject of great concern and debate, and will potentially remain unclear until formal negotiations with the EU are well underway, the Government has already stated that:
‘When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected.’
It is therefore highly unlikely that the Government would seek to use its new powers against potentially thousands of EU nationals who are living in the UK, unless there are very clear and justifiable reasons to do so. It would be logistically impossible, politically unthinkable and almost certainly unlawful under EU law for the Government to try and initiate the mass removal of ordinary law-abiding EU nationals who may be unaware of the technical detail of the complex Regulations or who may be temporarily outside their scope.
Whilst there are no certainties at this stage, and we will certainly see more posturing, we expect the new powers to be used on the grounds of public policy, public security, public health or because other rights have been misused and not in the case of innocent, technical errors.
What is the Home Office actually doing?
Previously the Home Office, when refusing applications for Permanent Residence documents, stated that the applicant would need to leave the UK. This position has already softened and refusal letters now state:
‘If you are in a position to provide the necessary information to support your application for a Document Certifying Permanent Residence, it is open to you to submit a further application if you consider that you have a right to reside in the United Kingdom under European Union Law…..As an EEA national you are not required to leave the United Kingdom as a result of this decision.’
Applicants are invited to make a fresh application and are clearly told that there is no requirement for them to leave the UK as a result of the decision. The same applies to refusals of applications for registration documents.
We have assisted many EU nationals to make successful fresh applications with stronger supporting evidence.
What steps can EU nationals take and what is the time-frame?
The Government has given itself significant new powers in the Regulations, including to investigate if EU nationals have the right of residence in the UK and to remove those who do not.
However, as we have explained above, we do not believe that the Home Office is likely to initiate a mass removal programme. Not only would it risk creating a significant and unwelcome backlash from the EU when delicate formal negotiations are very shortly due to commence, it is also highly doubtful if the Government could even access the data it would need. Any such action also risks ultimately being held to be unlawful, triggering potentially significant compensation claims.
That said, however, we do not recommend that EU nationals who want to continue to live in the UK take no action. We would recommend that any steps that can be taken now are taken in order to demonstrate compliance with the Regulations. We also recommend that, whilst it is not mandatory to do so, careful consideration is given to making an application to the Home Office for the relevant document confirming this.
The exact steps will of course depend on the individual’s particular circumstances. For example, becoming a job seeker, securing employment or setting oneself up as a self-employed person may bring the EU national back under the Regulations, as of now, and help to secure their position, when it may have been argued by the Home Office that they were outside them if they had been neither working or looking for work.
In terms of the time-frame, taking into account the Government’s position, by spring 2019 the UK will have left the EU, so certainly we can expect restrictions on free movement rights in the not too distant future. We will update our Brexit Immigration Analysis when further information is available.
Given this uncertainty over the time-frame, it would be wise in our view for EU nationals who wish to live in the UK to make an application for residence or permanent residence document.
How we can help
As we explained at the beginning, EU law is extremely complex and the Government’s interpretation of it is not always correct. The simple answer to the question ‘Can EU nationals be removed from the UK?’ is ‘Yes’ and this of itself will be of concern to many who are worried about their position.
We would, however, urge that a cautious and sensible approach is taken and that EU nationals react to what is actually happening in practice. Many EU nationals who are concerned will be able to take steps that will bring them under the Regulations and obtain a document from the Home Office. Doing so should help them to better protect their status in the UK as we move through the next stage of Brexit.
We provide legal advice and assistance to EEA nationals and their family members on the options available and steps that can be taken to protect their status in the UK. If you are concerned about your status and need legal advice, please contact us.