A nervous disposition
In this blog, originally published by LexisNexis, Katie Newbury provides guidance for EEA nationals on ways in which they can best protect their immigration position in the UK following the UK's vote to leave the EU.
The vote to leave the EU on 23 June 2016 does not, by itself, change anything about the free movement rights that EEA nationals have in the UK.
The referendum was not a binding vote and further steps will be required in order to extricate the UK from the EU. However, given the outcome of the vote and the possibility that article 50 of the Treaty on the European Union (TEU) will be triggered and the UK will leave the EU, it is sensible for EEA nationals to ensure their position here is as secure as possible.
We expect that transitional arrangements will be made for EEA citizens in the UK at the time of departure from the EU and that these would be part of the negotiations triggered by TEU, art 50. While we do not yet know what those transitional arrangements would be, it is highly likely that EEA nationals who have spent five years in the UK already and who have acquired permanent residence would be able to remain under similar terms. We would expect transitional arrangements to also address the position of EEA migrants who have not yet acquired permanent residence but are resident in the UK.
The most basic thing EEA nationals can and should do at this time is to gather and retain evidence relating to their residence in the UK. They should collect evidence showing they have been exercising treaty rights (as a worker, student, self-sufficient person, self-employed person, job-seeker) for at least five years if they have spent that long in the UK and on an on-going basis if they have not yet reached the five-year period. They should also collate a travel schedule showing their absences from the UK and ensure this is kept up to date as EEA nationals should normally spend no more than 180 days outside the UK in any 12-month period in the five years they are relying on for permanent residence.
This evidence will be critical in showing they have been residing in the UK in line with the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (EEA Regulations). In the event of the UK’s departure from the EU, EEA nationals may be called upon to establish they had been residing in the UK in compliance with the EEA Regulations in order to qualify for any transitional arrangements that may be in place.
The free movement rights enjoyed by EEA nationals (and their family members, both EEA and non-EEA) exist in and of themselves. While, it is possible to obtain confirmation of these rights in the form of documentation from the UK Home Office, EEA nationals have not commonly done so. The process can be time consuming and until now, many have seen it as unnecessary.
We would now strongly advise EEA nationals living in the UK to obtain confirmation of these EU rights as soon as possible.
For those EEA nationals who have spent less than five years exercising treaty rights in the UK, they can apply for a registration certificate confirming they are exercising treaty rights in the UK. This should not show an expiry date but will only be valid as long as the EEA national remains in the UK exercising treaty rights. An EEA national does not need to wait until they have held the registration certificate for five years before applying for confirmation of their permanent residence. Subject to absences (see above), an EEA national will acquire the right of permanent residence after continuously exercising treaty rights in the UK for five years. Therefore if they have already spent three years in the UK when they apply for the registration certificate in 2016, they may automatically acquire permanent residence in 2018.
For EEA nationals who have already spent five years or more in the UK exercising treaty rights, they can apply for confirmation that they have acquired permanent residence in the UK and no longer need to demonstrate they are exercising treaty rights. Under the EEA Regulations, some EEA nationals may also acquire permanent residence in less than five years and may therefore apply for confirmation of permanent residence application at an earlier date.
Once an EEA national has acquired permanent residence and held that right for a further 12 months, they may be eligible to apply to naturalise as a British Citizen. Acquisition of British citizenship is the best way for an EEA national to secure their place in the UK regardless of the outcome of any negotiations that take place as part of a process to leave the EU. However, it is important for EEA nationals to take advice on the impact of naturalisation on both any other nationality they hold as some countries do not recognise dual citizenship, and on their tax status in the UK. EEA nationals should also consider the position of any non-EEA family members who have not yet acquired the right of permanent residence. Such family members would lose the right to remain under the EEA Regulations on the EEA national becoming British. Families should therefore consider carefully the timing of a naturalisation application. In November 2015, the Home Office introduced a requirement for EEA nationals to obtain a document certifying permanent residence before applying for naturalisation.
Applications for registration certificates and documents certifying permanent residence are made to UK Visas and Immigration on forms EEA(QP) and EEA(PR) respectively. While it is not legally mandatory to use these specified forms in order to make a valid application as an EEA national, not using the forms could delay consideration of an application or lead to an application being wrongly rejected by a caseworker unfamiliar with the intricacies of EU law. It is therefore generally advisable to complete these forms. Regardless as to whether a form is completed, the fee of £65 per person must be paid as part of the application.
Applications for registration certificates can be made in person at a premium service centre or by post. Applications for a document certifying permanent residence can only be made by post.
As part of the application for a registration certificate, the EEA national must provide their original valid ID card or passport issued by an EEA state and proof that they are a qualified person, ie that they are exercising treaty rights in the UK.
As part of the application for a document certifying permanent residence, the EEA national must provide evidence they have acquired such a right.
As original ID cards and/or passports must be submitted with the initial application, it is generally necessary to request for such original documentation to be returned once the application has been lodged. It is usually possible to arrange for these documents to be returned within 4–6 weeks so the EEA national can continue to travel while the application is under consideration. As we expect to see a surge in EEA applications, we would strongly advise EEA nationals to obtain an ID card where possible so that they can submit this in place of their passport and be able to travel throughout the application process.
The EEA Regulations confirm that these documents should be issued as soon as possible after an application has been made. Decisions should be made within six months of the applications being submitted and can be challenged where the decision time exceeds this.
Given that we expect larger numbers of applications to be made following the outcome of the referendum vote, applicants should expect that it is very likely that applications will take the full six months and possibly longer, although such additional delay can be challenged.
A common problem for applicants relying on periods of self-sufficiency and time spent as a student is the need to show they have held comprehensive sickness insurance throughout. Because of this requirement, some EEA nationals who assume that they have acquired permanent residence have not, despite having lived in the UK for well over five years. While it is legally arguable that reliance can be made on the NHS (where there are reciprocal arrangements in place with the applicant’s home country), in practice, the Home Office will expect to see comprehensive private medical insurance for these periods of time. It is therefore strongly advisable that EEA nationals have clear evidence of health insurance for any periods when they are not working.
If applicants become redundant or involuntarily unemployed, they should register as a jobseeker with JobcentrePlus. If they have been working for 12 months before this, they may be able to maintain their status as a worker and count this time towards permanent residence, provided that certain conditions are met. If they do not register as a jobseeker, they should where possible consider comprehensive private medical insurance in order to demonstrate self-sufficiency during periods of unemployment.
If an applicant is relying on periods of self-employment for permanent residence, the list of evidence set out in the guidance on form EEA (PR) is extensive. We would strongly advise providing as much as possible to avoid the risk an application is refused.
Finally, if British citizenship is the ultimate goal for an applicant, they should note that the absence requirements differ for naturalisation and are more restrictive. As a general rule, to qualify for naturalisation, an applicant should have spent less than 450 days outside the UK in the preceding five years and no more than 90 of these should have been in the 12 months prior to application. There is provision for discretion to be exercised and additional absences to be disregarded but advice should be taken on this to determine whether it is likely such discretion would be exercised in a specific case.
This blog was first published as an interview with Kate Beaumont by LexisNexis on 1 July 2016.
You may also be interested in listening to our webinar on "What Brexit means for EU employees living in the UK and their families" and reading our previous blogs on immigration and other related issues on our EU Referendum blog.
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