What should EU nationals be doing now?
Following the outcome of the EU referendum many EU nationals have realised that their position in the UK is not as secure as they thought.
The UK is still a member of the EU and therefore nationals of EEA countries continue to enjoy free movement rights, which allow them to work, study, seek employment and live on a self-sufficient basis in the UK. As these are Treaty rights, rather than rights granted under UK Immigration Rules, most EEA nationals rely on their passport or national identity card as proof of their status. No permits are required, except for Croatian nationals who, depending on their circumstances, may need a purple, blue or yellow registration certificate.
There have been calls for the government to fully guarantee the rights of EU nationals already in the UK. However, despite pressure in Parliament, Theresa May's position has been that the rights of British expats also need to be secured and she does not wish to concede anything without negotiating reciprocal arrangements.
In the circumstances, EU nationals who are already in the UK would be well advised to obtain evidence of their entitlement to remain here. This should help to protect them in the future once the UK leaves the EU.
Permanent residence card
Those who have been exercising Treaty rights in the UK for over five years will have obtained permanent residence and should apply for a card confirming this. Whilst permanent residence is still an EU concept and therefore is not an absolute guarantee of the right to remain in the UK post-Brexit, it would be extremely difficult for the government to ignore settlement rights accrued in this way. A permanent residence card is also the key to obtaining British nationality, which would provide the greatest level of security.
Supplying evidence that you have been exercising Treaty rights is not always straight forward. It means finding records from at least the last five years and evidencing that the requirements have been met.
In particular many students and self-sufficient individuals are being caught out by the requirement to have held comprehensive sickness insurance. This requirement is not new, but in many cases was overlooked as EU nationals were able to access the NHS and so did not see the need for insurance. Those with an EHIC card or S1 form should be able to rely on this, otherwise private cover will have been required, which of course cannot now be backdated.
Job-seekers are also running into problems. Even if there is no desire to claim benefits, it is still essential to have registered as a job-seeker with Jobcentre Plus, the Jobs and Benefit Office or Social Security Office. There is also a limit on how long you can spend looking for work, unless you go through an assessment and obtain a certificate confirming that you have reasonable prospects of finding work soon.
Some EU nationals who have lived in the UK for a long time have decided that they see their future in the UK and that they wish to become British citizens. However, this is not as straight forward a process as it seems. The government changed the rules last year, so that any EU national who wishes to apply for naturalisation must now supply a permanent residence card as part of that application.
EU nationals must have been permanently resident in the UK for at least a year, before they can be naturalised, unless they are married to a British citizen. The application form for a permanent residence permit only requires evidence that the applicant has been exercising Treaty rights for the last five years. However, an individual who wants to obtain the permanent residence card and move straight to naturalisation will need to provide evidence going further back, in order to stake a claim that permanent residence status was acquired at least one year ago and therefore a further year of residence is not required for naturalisation.
Not everyone who is eligible for naturalisation will wish to take advantage of this. Naturalisation as a British citizen may have tax consequences, or might mean giving up nationality of another country which unlike the UK does not allow for dual citizenship. Naturalisation would also have an impact on any non-EU family members, as their visa category would change from EEA family permit, to family member of a settled person. This would trigger application of the infamous “Appendix FM”, which sets out a minimum income requirement, which not everyone is able to meet.
Those EU nationals who have been in the UK for less than five years will need to decide whether to wait and hope they reach this landmark before Brexit takes effect, or whether to at least get a temporary residence card now. The prudent approach would be to apply for the residence card, as this will at least fix a date from which the Home Office has accepted that Treaty rights were being exercised and demonstrates efforts to secure the individual’s status.
For those planning to move to the UK, the situation is even more uncertain. David Davis, the Brexit Minister, recently stated that EU nationals moving to the UK after the referendum know that the UK intends to leave the EU and so they can have no reasonable expectation that they will automatically be allowed to remain once Brexit takes effect. He has refused to be drawn on whether a particular cut-off date will be applied. This unfortunately means that the situation of these individuals is particularly precarious. If they do choose to come to the UK, they should also apply for a residence card and keep evidence of when they arrived, in case the date of arrival is used to determine who is and is not allowed to stay.
In the end, it may be that free movement rights are preserved as a condition of any new trade deal and this is what many EU leaders are demanding. However, Mr Davis has indicated his goal is to obtain free trade without free movement. EU nationals who value their free movement rights should therefore not be afraid to let their own government know how important free movement is to them, so this can be given appropriate weight in the Brexit negotiations.
The content of this article is for general information only. For further information regarding EU nationals, please contact a member of Birketts' immigration team
. Law covered as at July 2016.