Bishop & Sewell

Shockwaves from the referendum result have started to settle, leaving many EU nationals living in the UK wondering what the future holds for them.

The former Prime Minister has promised that nothing will change immediately but he has not – and cannot – make any promises about EU nationals longer future because, simply, no one knows what will happen.

The only near certainty at present is that EU nationals living here should have around two years of breathing space while the UK tries to negotiate an exit agreement with the EU. This period may be shorter if a deal is reached sooner, or longer if everyone agrees more time is needed.

What happens after will depend on the outcome of those talks, which will inevitably include heated debate on the fate of EU citizens living in the UK and Brits living on the Continent.

But I have a Norwegian friend …

There has been speculation that the UK may push for some form of ‘special status’, similar to that accorded to Switzerland, Norway, Iceland and Lichtenstein, which would give the UK access to the EU market.

Critically, this would also require it to continue to accept the ‘free movement of people’, the principle that permits EU nationals to live, work and study in the UK without the visa restrictions imposed on those from other parts of the world.

In this scenario, it is very likely that nothing would change for EU nationals and their family members already living here, while other EU citizens would be able to freely move here to work and study in the future.

However, given that migration fears sadly seem to have played such a crucial role in the referendum outcome, the chances of Westminster seeking a deal that allows the continued unrestricted free movement of people seem very slim indeed.

Deal … ?

That said, it is possible the parties may be able to reach some kind of middle ground, allowing freedom of movement in a more restricted form.

In such an agreement, the UK may be able to protect some of their financial and trade interests in exchange for continuing to allow Europeans to live and work in the UK on less onerous terms than non-EU citizens.

It is impossible to forecast what those terms might be or whether the EU would even agree to such a deal, given the tough response it adopted to Switzerland’s attempt to restrict immigration from the EU a couple of years back.

In theory, however, it would allow both sides to save face, hopefully with a minimum of disruption to the bloc’s economies. At present, this seems the most positive of the realistic outcomes facing EU nationals.

Another possibility is the EU and UK negotiate an exit agreement that does not allow for the free movement of people. Assuming the EU-UK split is nevertheless a cordial one, the UK would be in a much better position to reach a series of bilateral accords with individual EU states on travel, visa and residence provisions.

However, this process would undoubtedly take years and would still be fettered by EU-wide immigration obligations, which could severely limit the options available.

EU nationals

… Or no deal ?

The worst-case scenario would see the UK failing to agree any exit agreement at all. This is considered unlikely, as both parties have so many financial interests riding on a deal, but not impossible.

If this were to happen, EU citizens could find themselves ‘demoted’ to the same immigration status as non-EU nationals. In other words, they would be entirely subject to the Immigration Rules, whose highly restrictive provisions have made it such a challenge for foreign nationals to acquire the visas needed to study, work and live in the UK.

This would undoubtedly result in a massive drop in the number of migrants coming to the UK overall. Determined EU nationals would probably still be able to enter under the points-based immigration system meaning a potential reduction in the number of migrants arriving from further afield.

However, anyone who has attempted to navigate the Kafkaesque system the UK currently has in place for non-EU migrants knows it fiendishly complicated, extremely costly, and heavily stacked against applicants. It is a very far cry from the process that EU migrants benefit from at present, confusing though that may seem to many.

But what about me?

Regardless of the outcome of negotiations, it is widely expected that some allowance will be made for EU nationals already living in the UK.

Those with the greatest security are likely to be individuals who already hold residence documentation and, in particular, those with permanent residence. Although residence documentation is not presently required for EU migrants to live in the UK, its benefit is that it proves individuals are doing so in accordance with EU law.

This distinction is absolutely critical because it is expected that only those individuals the UK government recognises as living in the UK in accordance with EU law (known as ‘exercising Treaty rights’) will be able to benefit from any post-Brexit allowances made for EU nationals.

For example, one common mistake among EU students is to assume they simply need to be studying in the UK in order to be living here ‘in accordance with EU law.’ In fact, the UK interpretation of EU law requires students to have also taken out private health insurance, a fact of which many are unaware.

In the normal run of things, this kind of oversight only becomes an issue when EU nationals wish to apply for permanent residence and suddenly realise their time spent studying (for example) doesn’t count towards the five-year period needed to acquire permanent residence.

However, with the impending upheavals of Brexit, this kind of slip could make the difference between being able to stay in the UK for good or being required to leave.

As such, those who already hold documentation proving their status are likely to be in the strongest position, particularly if they are able to obtain permanent residence documentation prior to Brexit. Those without, should hopefully have a grace period during negotiations to try sort things out.

That said, there can of course be no guarantees that the UK will allow EU citizens already living here lawfully at a certain date to remain following a Brexit. But such individuals would undoubtedly be in an extremely strong position to challenge any efforts to remove them under basic principles of fairness and non-retrospectivity.

The position of family members, particularly those from outside the EU, is likely to be far more complicated, particularly where their right to reside derives from an EU child.

However, regardless of the outcome of negotiations, it seems inevitable that troubling and uncertain times lie ahead for the many thousands of EU nationals and their loved ones who have chosen to make the UK their home.

To see how we can assist you, please contact the Immigration team on 020 7631 4141.

This article originally appeared on the Fisher Meredith website in July 2016.

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