Brexit creates many uncertainties, and one of the most concerning is the status of EU nationals living and working in the UK.
The 23 June vote by the UK to leave the European Union raises a number of questions, such as what happens to those EU nationals living in the UK. Uncertainties abound and it is to be hoped that the UK government – whoever leads it – will clarify the position as soon as possible.
This article addresses the situation as regards people from France. It is written by Nicolas Rollason, head of business immigration at Kingsley Napley, and William Healing, family law partner and Franco-British national, also at Kingsley Napley. This publication is pleased to share insights from such experts; as always it does not necessarily endorse all views expressed and invites readers to respond.
After a period where some politicians have appeared to use EU nationals as negotiation chips, many EU nationals will feel concerned about their future rights to remain in the UK. This will be in addition to the initial shock of the referendum result itself, which has been a political alarm call both within the UK and more widely in Europe.
The first point is to assess whether in reality the British government would ever proceed to deport EU nationals that are already based in this country, either as individuals or en masse. The short answer is that that is unthinkable. It is not a desirable or feasible option at a political level, not least because of the vast numbers (in excess of 1 million) British nationals living and working in the 27 other member states of the European Union, whose rights the government will want to safeguard.
It is highly likely that the UK government will introduce generous transitional arrangements for EU nationals that are already resident in the UK as of a certain date. That date could be the referendum date or a future date. There is currently no provision in the EU Treaty which would allow the UK to place a brake on free movement of people while it remains an EU member state - it can only exclude or expel EU citizens on an individual basis on grounds of public policy (i.e. crime), public health and national security. If the UK applied a brake on future arrivals of EU nationals - for example, if the annual net migration numbers from the EU, prior to the end of Brexit negotiations, were to swell far beyond their current annual net migration total (around 180,000) - this would be entirely unlawful.
In view of recent comments by the immigration minister on the UK observing the law, this would be an extreme and hopefully unlikely scenario. In addition, the prospect of mass expulsion is not one which will ever be seen, simply because this is prohibited under international law and the UK would never wish for reciprocal retaliation over its own citizens abroad.
What are the practical steps EU nationals already living here can take now to register their rights to remain, or to apply for nationality?
We are not able to give absolute guarantees that any steps short of applying for nationality (which is a guarantee) will secure the long-term right to remain in the UK. However, as we have said, long-term rights to remain are likely to be given to EU nationals already present in the UK (perhaps at least by 24 June 2016 or a later date). Furthermore, rather than adopt a wait and see approach, there are steps EU nationals can take to have their long-term presence recognised by the UK authorities. This again is not a guarantee but a useful insurance policy against the uncertainties in future government policy right now.
EU nationals that have five years’ residence in the UK can apply for permanent residence. This is using a Home Office form EEA (PR). The application is reasonably straightforward but involves a heavy amount of documentation.
We are instructed by time-poor clients to assist with this process, and the numbers of enquiries from new clients have dramatically increased since the practical consequences of the referendum result have started to sink in. There is a further option for EU nationals who have been resident here for at least 10 years - that is applying for indefinite leave to remain, which is available under UK domestic law (permanent residence, mentioned above, is a European law status). This application process is also an exercise in providing very detailed documentation and forms to the Home Office. It also requires EU nationals to provide details of all of their travel for the past 10 years.
Both the routes above of establishing long-term residence are gateways through which EU nationals must proceed before they can apply for British nationality.
Once long-term residence in the UK has been established in the UK via either of the routes above, and it can be shown that the EU national has held that status for 12 months, then the EU national can apply for British nationality. For those who have obtained confirmation of their permanent residence, this 12-month period will start from a past date when the person met the five-year qualifying requirements. For those who obtain indefinite leave under the 10-year route, this starts from the grant of that status.
We often find that multiple members of the same family wish to apply - some in their own right and some as dependants. Families are for instance particularly anxious to secure rights for children who are around their majority, and who are about to or have embarked on higher education abroad. They want to secure family ties to the UK “mother ship”.
On the question of British nationality for children, different rules apply depending on when children were born in the UK. A key point to remember, which is not widely understood by all EU nationals here, is that if a child was born on or after 30 April 2006 to parents who were already UK resident for five years at the time of birth, then that child may automatically be a British national - i.e. these children can apply for British passports. Children born in the UK before their parents completed the five years can register as British as soon as that period is completed. It is also important to note that those born in the UK before 2 October 2000 will be British by birth if their EU parents were working in the UK at the time of their birth - so there may well be EU nationals who have left the UK many years ago who could be entitled to British passports.
While this is a period of great uncertainty and inevitably of worry for EU nationals, there is perhaps one happy paradox. Whatever the clarion calls to nationalism are at the political extremes all over Europe, a great many EU nationals are applying for UK nationality and will do so over the next few months, leading to a great many more cases of dual nationality. Conversely, many British citizens are also applying for EU passports to preserve their own rights to move. This seems to us to be a good way in which people are voting with their feet to integrate as European at a practical level, whatever political confusions and leadership difficulties may lie ahead.