Lawyers must fix the problems with gagging orders before it is too late
Speculation and debate on whether nationals of EU states will have the right to live and work in the UK after Brexit is played out daily in the media. It is naturally a question troubling many people, both in government and those affected by Brexit.
So far, the issue has primarily been addressed from the perspective of EU law and British constitutional law. While EU nationals (and British nationals abroad) await their fate, in this blog, we examine the extent to which UK immigration law and European human rights may in fact provide a basis for EU nationals to continue to live in the UK after the UK’s departure from the EU, irrespective of any transitional arrangements or agreements which may be made between the UK and the EU.
Assuming that EU law may no longer apply at all in the UK, on what legal grounds may EU nationals live in the UK? The first and simplest answer to that question is of course on the basis of the UK immigration rules. These rules are extremely complex with very fine distinctions between categories of people and strict requirements. So much so that the complexity of the rules were recently criticised by the Supreme Court on the lack of coherent meaning to the rules and policy guidance provided (see Mirza v Secretary of State for the Home Department  UKSC 63).
Further, the UK immigration rules change with dizzying rapidity – over the past five years, they have been amended at least three times annually if not more frequently. Not only that, it has become increasingly exceptional that the rules include transitional periods and provisions to permit people who began their residence in the UK on the basis of one category, which is subsequently changed (or even abolished) to continue to reside without meeting the requirements of the new categories or provisions. Thus, for many EU nationals who have moved and resided in the UK on the basis of the very stable EU free movement rules, life under the UK immigration rules may be a rude awakening.
For EU nationals and their family members who have lived in the UK for substantial periods of their lives but have not acquired permanent residence before Brexit, any claim to remain in the UK would be on the basis of long residence or private life under UK immigration law.
There is a ten year long residence route in UK immigration rules, which enables those who have lived in the UK lawfully for ten years to apply for indefinite leave to remain in the UK (a national status which we do not expect will be affected by Brexit). An EU national, who has lawfully resided in the UK for ten years or more before Brexit, may therefore be able to apply under this category. Unsurprisingly, there are strict requirements to satisfy in that the EU national would need to meet the permitted absence requirement of spending no more than 540 days outside the UK during his or her ten years of residence. This will be a hard task to prove, given that the passports of EU nationals and family members are typically not stamped on entry to the UK.
Further, significant documentation must be provided to demonstrate the EU national has been living in the UK lawfully over the ten years. An EU national would be lawfully resident in the UK if he or she was continuously exercising Treaty rights in the UK in those ten years – either as a worker or self-employed person, or alternatively, they may be a student or self-sufficient person, in which case they would need to have sufficient resources to not become a burden on the social security system and hold comprehensive medical insurance cover in the UK.
For those who do not qualify under the ten year long residence route and have been in the UK for a significant period of their life, there are four other possible categories to apply under:
The UK joined the EU in 1973, so it is likely that many EU nationals have lived in the UK for a considerable period of their life since the accession. The 20 year long residence rule may be applicable to EU nationals, who have not been continuously residing in the UK in accordance with EU law (i.e. the EU national was not exercising Treaty rights continuously as above) but have lived in the UK for 20 years in duration.
The 20 year rule will allow the EU national to apply to remain in the UK post-Brexit despite not being continuously economically active in the UK throughout his or her 20 years of stay. However, what is important to note under the 20 year rule is that a person does not apply for indefinite leave to remain in the UK (unlike the ten year rule). Instead, on a successful application, the person is granted discretionary leave to remain for ten years. Only when the EU national has expended a further ten years of stay in the UK (after demonstrating that he or she has already continuously resided in the UK for 20 years) can he or she then apply for indefinite leave to remain.
Therefore, in circumstances where the EU national has been left with no choice but to apply under the 20 year rule, he or she may be waiting a lifetime before finally obtaining recognition of permanent residence status in the UK. Amongst many other reasons, this is another motivation as to why EU nationals and their family members should seek to apply for confirmation of their permanent residence before Brexit.
Long resident EU nationals in the UK may also be able to rely on European human rights law in the form of the European Convention on Human Rights (ECHR) as a legal basis for continued residence and work in the UK. This right to continue to reside in a country after an extensive period of residence arises from Article 8 ECHR. This provision requires the member states to respect the private and family life of everyone within their jurisdiction with some exceptions permissible set out in Article 8(2) but, as exceptions to the rule, it is for the state to justify any interference.
There is jurisprudence from the European Court of Human Rights in cases where people, who shared a citizenship, lost that citizenship by the act of independence of the territory where they lived and became foreigners suddenly liable to deportation. This situation is not so dissimilar to what may happen to EU nationals after Brexit. While at the moment, together with British citizens, they share EU citizenship. After Brexit, British citizens will no longer be EU citizens and EU citizenship will no longer be a citizenship which has commonality with British citizenship.
In the European human rights case of Natella Kaftailova v Latvia 7 December 2007, the courts held that 11 years of residence is sufficient to establish private life. EU nationals should not be required to show that they have close family members (lawfully) resident in the UK. The fact of their residence (as in the case of Natella Kaftailova with 11 years in duration), may be sufficient for the case to be made out under European human rights law. In stark comparison, the UK’s benchmark for establishing private life as 20 years is somewhat draconian and possibly challengeable. However, any challenges to the European Court of Human Rights is dependent on the UK remaining a member and, of course, in the frenzy of our current anti-EU, Brexit driven government policies, it remains to be seen on whether the UK government would review that membership also.
On careful legal examination of the situation, we take the view that this jurisprudence will be highly relevant. EU nationals who have lived in the UK and developed their life here will be able to argue that they should be permitted to continue to live here on the basis of the UK’s obligation to respect their private life.
EU nationals who have resided for a long time in the UK are among those who will be most immediately affected by Brexit. As we have set out in this blog, there are two ways in which they can seek to establish a right to continue to live here after the UK’s ‘divorce’ from the EU. The first is to find a category in UK immigration law which they can use. Often, this is like passing through the eye of the needle in terms of the complexity but the long stop rules on long residence may be a possibility for some. However, as this is a provision of UK law, it can be changed by government. Secondly, European human rights law may provide a solution for some EU nationals with long residence in the UK in so far as it acknowledges that after a period of long residence in a state, a foreigner acquires a human right to continue to reside there for the purpose of enjoying his or her private life. However, if after Brexit, the UK government decides to proceed to withdraw from the European Convention on Human Rights, this claim may fall away.
To find out more about your right of residence in the UK, please contact a member of our immigration team.
You may also wish to read some of our other blogs about Brexit and what it may mean for you, your family and business.
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