Brexit – Frequently Asked Questions

Following the referendum on 23 June 2016, the UK is preparing to leave the EU. Our quick reference guide for European Economic Area (EEA) nationals, family members and employers covers Frequently Asked Questions on the impact of the referendum:

Has the referendum on 23 June 2016 changed the law for EEA nationals?

No. The UK remains a member of the EU. EEA nationals continue to hold full Free Movement rights in the UK (and similarly British citizens in the EU) until the UK ceases to be an EU member state. However, it is prudent to start planning for changes that may occur in the future.

When will the UK leave the EU?

The mechanism for leaving the EU, set out in Article 50 of the Treaty on the European Union (the Lisbon Treaty), requires the UK to formally give notice of its intention to leave, triggering a two year period (which may be extended by unanimous agreement) after which its membership of the EU will cease.

The Prime Minster, Theresa May, announced in October 2016 that Article 50 will be invoked by March 2017. In January 2017, the Supreme Court ruled that Parliament must vote on whether the Government can start the Brexit process before Article 50 is invoked. However, Parliament approval is expected to be given in time for the Government’s 31 March deadline.

Once notice has been given, the UK will begin formal negotiations with the EU for the terms of exit. In January 2017, Theresa May declared that Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force. The UK may therefore leave the EU by March 2019.

What will happen to the rights of EEA citizens already in the UK?

EEA citizens already in the UK continue to have free movement rights (until the UK formally leaves the EU).

It is expected that transitional arrangements will be made for these EEA citizens to be granted permission under UK law (rather than EU law) when the UK leaves the EU. It remains to be determined by the government as to what that permission will be (indefinite or temporary), where the line will be drawn and what the application process may involve.

It is expected that those who have already acquired permanent residence under EU law, having lived and exercised Treaty rights (as a worker, a self-employed person, a student or self-sufficient person) in the UK for five years, would be granted equivalent indefinite status in the UK under domestic law. It is expected that indefinite leave or a period of temporary status leading to indefinite leave, would be given to those who have not yet acquired permanent residence by the date the UK ceases to be a member of the EU, although the position may vary depending upon the date the EEA national began exercising Treaty rights. For example in July 2016, the House of Commons Home Affairs Committee proposed that the government consider three potential cut off points from which EEA migrants would no longer be able to claim permanent residence the UK: the date of the referendum (23 June 2016), the date Article 50 is triggered (now expected in March 2017) or the day the UK actually leaves the EU. No date has been confirmed by government. Further details will emerge as negotiations take place over the next two years.

Theresa May stated in January 2017 that the status of EEA citizens living in the UK also hinges on British Citizens residing in other member states receiving the same protections, which may take months, or indeed years to agree on.

However, it is likely that some form of application would be required to enable the Home Office to identify those EEA nationals on whom the equivalent UK law status is to be conferred. We therefore advise that EEA nationals (and their qualifying family members) apply to the Home Office for documents recognising their current rights of residence or permanent residence. For those who are (or will be before exit) eligible to naturalise as British citizens we strongly advise that they do so, subject to certain considerations.

What will happen to EEA nationals wishing to come to the UK once it is no longer in the EU?

This will very much depend on the outcome of the UK’s exit negotiations with the EU. It is unlikely that free movement will continue, with Theresa May highlighting in her January 2017 speech that the Government's commitment to limit free movement of European citizens will be one of its top priorities in the upcoming negotiations with the EU. This would mean that EEA nationals arriving in the UK following Brexit are likely to face new travel and work related restrictions, the exact details of which are yet to be devised. EEA citizens may, however, benefit from special provisions (less generous than Free Movement, but more generous than the UK Immigration Rules), such as a simple worker registration scheme.

It would otherwise be necessary for nationals of EU member states to meet the requirements of UK domestic immigration laws. In this event, for those simply visiting the UK for leisure or business there is unlikely to be a significant impact, but for those seeking to work or study in the UK, entry clearance applications would be required, in much the same way as non-EEA nationals. It is also likely that there will be changes to the current Immigration Rules and procedures as the system would need to be adapted to accommodate different needs and volumes that exiting the EU will create.

It is also worth noting that the PM indicated in January 2017 that the Government would push for a 'phased period of implementation' which could mean that any new arrangements, including those in relation to immigration, do not kick in immediately on completion of the two year period following the triggering of Article 50 (expected in March 2017). This may provide EEA nationals with a brief window after Brexit where the current legal framework in regards to immigration would remain effective.

What will happen to UK citizens living in other EU member states?

Again, there is no immediate change for British citizens in the EU.

As aforementioned, the position of British citizens in the EU will be a matter for the EU and the constituent member states and this will be a key part of the exit negotiations. Undoubtedly the UK will wish to secure the status of its citizens abroad and reciprocity will be a key consideration in the negotiating positions.

What action should EEA nationals and their family members take?

To be put in the strongest position when Brexit finally bites, EEA nationals (and family members) who are already in the UK exercising Treaty rights should consider applying to the Home Office for documents recognising that they have acquired permanent residence (if exercising treaty rights for at least 5 years) or currently have a right of residence.

Those who have resided in the UK for at least 5 years and have held permanent residence for at least 1 year (or will have done so by the date of exit from the EU) should consider applying to naturalise as British citizens.

An online application service for EEA residence documentation is now available to some EEA nationals and their family members, applying at the same time. However the service is currently not available to students and self-sufficient EEA migrants sponsoring family members as well as those applying for retained rights of residence documentation and under the Surinder Singh route.

Online applicants may also be able to use the European Passport Return Service.

What action should employers take?

There a number of ways in which employers can support and reassure their EU workforce and plan ahead to protect the business from future changes (including for example running seminar sessions for staff, supporting applications where appropriate and analysing the workforce composition/assessing alternative immigrations solutions post-Brexit).

LDS’ award-winning team of specialist lawyers can help businesses and individuals navigate the changes ahead as the UK prepares to leave the EU; from expert advice and representation in making applications to strategic advice for businesses, training/seminars and influencing policy development.

Furthermore, we shall shortly be inviting clients to provide us with their views on what the immigration system should look like following Brexit, as LDS takes part in consulting the Home Office on the issue.

For more information, contact a member of our specialist EU team via email, EUenquiries@lauradevine.com or by phone +44 (0)20 7469 6460.