Brexit: an Immigration perspective

Whilst the concept of free movement has evolved since its inception in 1957, emerging from the ashes of the Second World War, it has always been a key feature of membership of the European Union. This was cemented by the Treaty of Maastricht in 1992 and further strengthened by the Lisbon Treaty, ratified in 2007. Today, the provisions governing the free movement of persons are laid down in Directive 2004/38/EC (known as the Citizens’ Directive) on the rights of EU citizens and their family members to move and reside freely within the territory of the Member States. The Directive was transposed into UK law by virtue of the Immigration (EEA) Regulations 2006 (the EEA Regulations).


Clearly, the 23rd June 2016 vote will see changes to this notion of free movement throughout the EU, although it is important to remember that we remain a member of the EU today and the official stance taken by the Home Office makes it clear that there will be no immediate change to the right to reside for EU/EEA nationals and their family members. What is unclear, however, is what the future holds for EU/EEA nationals living in the UK, and equally, for their non-EU family members. This article seeks to explore some of the possible implications for those affected.


Withdrawal from the EU


An earlier article by Duncan Gillespie, Brexit: What’s in store? describes in some detail the withdrawal process from the EU by virtue of Article 50 of the Treaty on European Union (‘TEU’). The new PM, Theresa May, has already made it clear that the government is not in any rush to exit the EU and there has, as yet, been no formal notification of the decision stating the UK’s intention to withdraw. We do not know when the government will invoke Article 50 but we do know that once triggered, free movement laws in their current form will cease to have effect two years post-invocation, unless the withdrawal treaty sets a different date or member states agree unanimously to extend that date.


This is, unfortunately, where any notion of certainty ends. What will happen next is entirely unpredictable. The UK may seek to follow countries like Norway, by joining the EEA or may seek a ‘standalone’ treaty on the free movement of people, by following the Swiss paradigm. The general consensus appears to be that transitional provisions will be introduced which will offer some protection to EEA nationals already resident in the UK but only time will tell. Irrespective of the ultimate outcome of future negotiations, demonstrating rights already held in the UK should be a priority for those concerned about their future residence.


Impact on EEA Nationals & family members


At present, all EEA nationals (including Swiss, Icelandic, Liechtenstein and Norwegian nationals who have free movement rights) should still be entitled to live and work in the UK so long as they are economically active. The Citizens’ Directive, proffers a right to reside to those who meet the definition of a “qualified person”, which is essentially someone who is engaged in employment, seeking employment (for a definitive period), self-employed, or a student or self-sufficient (as long as they have comprehensive sickness insurance). Family members of a “qualified person” can also benefit from these provisions. As long as the EEA national continues to be economically active, he/she can continue to reside in the UK.


There are several ways in which an EEA national and/or their family members can accrue permanent residence, most commonly by residing in the UK in accordance with the relevant provisions for a period of five years.


It is important to note, at this stage, that an individual who has an EU law right to reside in the UK under the Citizens’ Directive and the domestic EEA Regulations can rely on the principle of direct effect, meaning that any application to the Home Office for a document confirming rights of residence is essentially superfluous. The right to remain is conferred directly by EU law and is not contingent upon the approval of domestic authorities.


As a result, many EEA nationals now residing in the UK do not have any formal residence documentation evidencing their right to reside. This should not, in itself, be an issue; however, it would be sensible for EEA nationals in this position to make formal applications to the Home Office now, confirming existing rights to protect their position in the future (see below for further details). If an EEA national has been in continuous employment and is able to evidence this, this is likely to be straightforward. Conversely, if an EEA national is seeking to rely upon studies/self-sufficiency, it may be a different story, given the requirement to hold comprehensive sickness insurance in order to be a “qualified person”. There is a certain incongruity in the fact that EU nationals residing in the UK are entitled to access NHS treatment and yet this has been held to be insufficient for the purposes of comprehensive sickness insurance. Many EEA nationals are simply unaware of this until they make an application to the Home Office.


Another category of individuals who may be more heavily impacted by the upcoming changes are those non-EU nationals who may derive rights of residence through family members. The EEA Regulations were amended to reflect ECJ decisions, such as Chen [2004] ECJC 200/02, Ibrahim [2012] ECJ C-310/08 and Teixeira [2010] ECJ C-480/08 and Zambrano [2011] ECJ C-34/09, allowing for a new category of residence called ‘derivative residence’ which results in the issue of a new type of ‘derivative residence card’. This includes primary carers of British citizens and primary carers of self sufficient EEA national children, amongst others (cf. Regulation 15A). Anecdotally, these derivative rights have been difficult to establish since their introduction and moreover, this is not a category which leads to permanent residence. Therefore, those who are entitled to a derivative right to reside may be most vulnerable to the forthcoming changes.


Many others may be anxious about their future, including:


• Those who acceded the EU more recently (such as A8, A2 and Croatian nationals), who will need to ensure that they have complied with the respective worker registration schemes in place, otherwise, periods of residence (for the purposes of permanent residence) may be discounted.


• Cases where relationships have broken down and/or where non-EU nationals find that they are no longer dependent upon their EEA national family member. There may be a possibility of a retained right of residence under current provisions.


So, what practical options are open to those who may be impacted by the pending changes?


Securing existing EU rights


Whilst the principle of direct effect should continue to apply, a pragmatic approach for any EEA national and/or family member would be to consider making an application for a residence card or a document confirming their permanent right to reside. As above, these documents are not compulsory but they are a relatively simple way to acquire documentary proof of existing rights of residence. The fees are nominal (£65) and the application process is straightforward, as long as there are no complex circumstances or gaps in evidence. For those who believe that they may derive a right to reside on the basis of an EEA family member, it would be advisable to make an application in recognition of this right as soon as possible.


Another option which may be open to some EEA nationals is to consider applying to naturalise as British. One thing to note is that, from 12th November 2015, any EEA national seeking to naturalise must apply for permanent residence first, before they will be deemed eligible for naturalisation, and he/she must have held permanent residence for 12 months before applying to naturalise.


There will, of course, be scenarios whereby making a straightforward application for residence or naturalisation may simply not be an option, and in these instances, seeking guidance or legal advice will likely be a good starting point.


To find out more, please contact Eimear McCann on