30: Brexit Stage Left – where do EU nationals stand at the end of Act 1?
The political vacuum which has ensued since the result of the referendum on the UK’s continued membership of the EU has been more than filled by the column inches on the consequences of the vote. However, it is clear that both the political class and the public who voted for and against the UK leaving the EU will have to grapple fairly soon with the reality of a Brexit. EU nationals in the UK will also be among those most concerned about their future here and they will inevitably be feeling most acutely the urgency to act.
What future changes might there be in immigration law governing the free movement rights of EU and British nationals?
Nothing has changed as we stand and nothing is likely to change for a substantial period given the potential length of negotiations between the UK and the EU and the possibility that the UK will, in any event, accept substantive free movement in exchange for access to the single market.
Applying for permanent residency
Now is definitely the time to be applying for registration certificates and residence cards. The Home Office is required to process applications for certificates and residence cards and permanent residence within 6 months. Hence, submitting an application now will very probably mean that EU nationals will receive a decision well before any major milestones in the negotiations. Applicants do not necessarily need to use the forms provided by the Home Office for European applications. EU nationals simply need to provide good evidence of exercising Treaty rights, or, in the case of a permanent residence application, that they have been doing so for at least the last 5 years.
Applicants for permanent residence cards might also want to consider what period they want to use to show the Home Office that they have acquired permanent residence rights in the UK. Given the ramifications of Brexit, and the uncertainty of what comes next, many applicants will want to apply for a British passport as soon as possible. The grant of citizenship requires applicants to have resided continuously in the UK without immigration restrictions for the 12 months preceding the application (for EU nationals, this means having had permanent residence for the last 12 months). By specifying a 5-year period ending more than a year ago, successful applicants would theoretically already be in a position to meet the residence requirement for them to be eligible for citizenship as soon as the permanent residence card comes through.
Is there potential for a points-based system?
In general terms, if the UK remains part of the European Economic Area then free movement rights would have to continue in any event. It is possible that UK negotiators would be able to chip away at the edges of those rights, much as David Cameron did when he won concessions from EU leaders early this year. Hence, the continuation and extent of the rights of EU nationals to live and work in the UK will largely depend on the outcome of future negotiations. Even in the event of a worst-case scenario, such as the extension of the points-based system to all EU nationals coming to the UK, it is highly likely that EU nationals already in the UK will be allowed to continue to reside here and may even not have to make any additional immigration applications in order to do so. However, as no one knows what changes the next few months and years could hold, the key is to keep up to speed with any changes and to act on a ‘safety-first’ basis. For the moment, that means concerned EU nationals should start filling out the forms.
What about British nationals in EU member states?
Of course, on the other side of the coin are the British nationals in other EU member states. Here there is even more uncertainty. It is highly likely that any restrictions on EU migrants in Britain would be met with similar restrictions on British nationals living abroad. Again, time is of the essence here and it makes sense to make enquiries sooner rather than later as to what applications can be made for permanent residence and/or nationality depending on the rules in place in each country.
11 July 2016