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Immigration Special: Brexit Implications on Free Movement

On 29 March 2017, the UK’s Prime Minister Theresa May triggered Article 50 of the Lisbon Treaty to activate the mechanism for the UK’s withdrawal from the EU. From that point, the UK has two years to negotiate with the remaining member states the terms of its departure (though this may be extended by unanimous agreement). With an estimated 3.3 million EU nationals living in the UK, and 1.2 million Brits living in other EU member states, what will Brexit mean for those currently enjoying freedom of movement (the right to enter, live and work in any of the European Economic Area (EEA) countries and Switzerland) in the UK?

For the time being, no changes have taken effect. EEA nationals may come and go as normal. Although the UK government published the White Paper “The Process for Withdrawing from the European Union”, it provided little clarity as the UK government do not wish to reveal their hand prior to negotiations. They did not even provide assurances regarding the protection of the rights of EEA citizens when pressured to do so by the House of Lords (the UK Parliament’s second chamber).

Under the current rules, permanent residence is acquired automatically when an EEA national has exercised Treaty Rights (work, study, self-sufficiency or job-seeking) in a member state for five years. Under the Vienna Convention on the Law of Treaties 1969, withdrawal from a treaty does not affect any rights or obligations acquired under it before withdrawal; those who achieve permanent residence before Brexit can therefore feel safe that this right will be protected. Permanent residence will generally only be lost if the individual leaves the UK for two consecutive years.

Those with less than five years’ residence in the UK are understandably nervous. The White Paper argued that British citizens in the EU should not assume that their rights would be guaranteed, and provided no guarantees to EEA nationals. However, given the public and political pressure not to treat people as bargaining chips, it is unlikely that either the UK or the EU will insist on an immediate cessation of existing rights for those currently exercising them.

It is therefore likely (though not yet guaranteed) that there will be a lead-out period to allow those who entered the UK on the current rules to obtain permanent residence after five years’ residence, even if Brexit happens during that time. Those entering the UK after Brexit will not enjoy such rights, and will be subject to any new rules the UK implements; these rules have not yet been determined.

In the meantime, our advice to EEA nationals and their family members (including non-EEA national family members) living in the UK is to ensure that their paperwork is in order and that they can evidence that they are currently exercising Treaty Rights. Importantly, those who are studying or self-sufficient should ensure that they have comprehensive sickness insurance in place throughout their time in the UK, either under a private policy or by obtaining a European Health Insurance Card from their home country.

Obtaining a document from the Home Office, whether to prove an existing right to live in the UK or to prove that permanent residence has been acquired, may be hugely beneficial come Brexit and speed up any subsequent applications that may need to be made.

 

Matthew Cranton - Employment & Immigration

This article was first published on 24 April 2017 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox.

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.