Brexit: home & away

10 February 2017

Those who have chosen to make the UK their home deserve greater transparency about their position.

As Katie Newbury explains in this blog:

  • There is nothing in the plans set out so far which suggests an immigration system incorporating EU citizens would be any less restrictive or more welcoming.
  • We do know that any deal to secure the rights of EU nationals in the UK would be contingent on an agreement with the EU27 guaranteeing reciprocal rights for British citizens.

The prime minister has been clear that her strategy for Brexit negotiations will be to maintain the element of surprise by disclosing as little as possible. The strategy was manifest in both her speech on 17 January and in the White Paper published this month.

While scant on details, these have represented the clearest indication yet that free movement of persons will not feature in any post-Brexit deal. The government’s focus on controlling immigration has been tempered with platitudes regarding the UK continuing to attract the brightest and best and an “openness” to international talent. This attitude is in stark contrast to the direction we have seen UK immigration take under Theresa May as home secretary and prime minister with respect to non-EU migrants.

The UK has become arguably less open to international talent during her tenure in both roles. As well as closing visa routes such as the post-study programme for international graduates of UK universities, the UK has intentionally set out to establish a “hostile environment”. Although supposedly targeted at illegal immigrants, the ramifications are far more wide reaching. From cutting rights of appeal for all migrants to delegating immigration enforcement to landlords through the introduction of “right to rent” checks, in seeking to deter illegal immigration, the UK has shown itself to be hostile to all. There is nothing in the plans set out so far which suggests an immigration system incorporating EU citizens would be any less restrictive or more welcoming.

An end to free movement means that, post-Brexit, an EU passport will not be enough to admit you to the UK for an unlimited period of time, prove your right to work, or right to rent. What then of those Europeans who have made the UK their home? The government continues to state they are ready to secure the rights of Europeans living in the UK, and indeed the White Paper describes this as one of its “early priorities for the forthcoming negotiations”. We do know that any deal to secure the rights of EU nationals in the UK would be contingent on an agreement with the EU27 guaranteeing reciprocal rights for British citizens. Beyond this though, the government’s statements only raise further as yet unanswered questions, which are covered below.

Who will be included in the agreement?

  • There will presumably be a cut-off date for when an EU national needed to arrive in the UK in order to benefit from this agreement. What date will be set?
  • Under existing EEA Regulations, an EU national will acquire permanent residence automatically after five years in the UK exercising treaty rights. Will EU nationals still need to have completed five years to benefit from this agreement?
  • Will Europeans need to have exercised treaty rights during their time in the UK? Insisting on this could leave long-time residents of the UK caught out.

By way of example, we can look at the Europeans who are married to British citizens in the UK. There are many who have not worked themselves, perhaps raising children, but have relied on their British spouse who works in the UK. These Europeans must, therefore, show they have exercised treaty rights as a “self-sufficient” person. To exercise treaty rights in this way, there is a requirement to hold comprehensive sickness insurance, something not widely known.

Contrast this with the European spouse of a non-British EU national working in the UK, who could qualify for permanent residence without the need for comprehensive sickness insurance in otherwise identical circumstances. Will the proposed deal recognise such lacunas in coverage and include fair proposals to ensure these individuals can still benefit from the terms? Failure to offer concessions here will trigger claims under Art 8 of the European Convention on Human Rights, stoke uncertainty and generate an excess of litigation.

What process will EU Nationals need to follow to confirm their rights?

Having decided on who will be covered by this agreement, there will need to be a process by which such individuals can be identified and issued with documentation to prove their status in the UK. The process of documenting Europeans who have a right of residence in the UK will likely be a slow one.

We remain concerned that documenting the sheer volume of individuals who would need proof of their status would be impossible in the two-year Art 50 negotiation window. What transitional arrangements will be put in place to protect Europeans in the UK from the harsh reality of limited Home Office resources?

What about EU nationals who arrive after the yet to be determined “date”?

While we don’t yet know what date the government will use as a cut-off, it will almost certainly be a date in the past. The government fears that choosing a date in the future will encourage a surge in EU nationals arriving in the UK before the date takes effect. That said, until the UK has formally left, EU citizens remain free to travel to the UK to exercise their treaty rights. It is critical for these individuals and for their employers to have some level of certainty about their future status in the UK.

This blog was first published in New Law Journal in February 2017.

Further information

If you are affected or have any questions about the issues raised in this blog, please contact Katie Newbury or a member of our immigration team.

You may be interested in reading our fact sheet below with practical steps EU citizens in the UK can take now.  

See also our other blogs for further updates and opinion on immigration  and Brexit related issues. 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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