The UK is due to leave the European Union (EU) on 29 March 2019 (unless both sides agree to an extension). In this quick reference guide for EU nationals, family members and employers we answer the most frequently asked questions (FAQs) on the impacts of Brexit:
For the purpose of these FAQs the term ‘EU nationals’ includes nationals of the European Economic Area (EEA) and Switzerland, but excludes UK nationals.
The EEA is made up of the following countries: Austria, Belgium, Bulgaria, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden and the United Kingdom.
Freedom of movement allows EU nationals and their family members to travel to and live in other EU member states. EU nationals and their family members can enter and reside in any EU member state for three months without restrictions. If they wish to reside there for over three months, the EU national must do one of the following:
Engaging in one of the activities above is usually referred to as ‘exercising a Treaty right’.
Family members of EU nationals who may also benefit from free movement rights include:
No. EU nationals (and their family members) continue to enjoy full free movement rights in the UK (and similarly British citizens in the EU) until the UK ceases to be a member of the EU.
The UK is expected to exit the EU on 29 March 2019, which has been agreed as the ‘cut-off date’ for EU citizens’ rights. It has been agreed that EU nationals lawfully resident in the UK and British citizens lawfully resident elsewhere in the EU prior to this date (residence to be interpreted in accordance with EU law suggesting a requirement of exercise of Treaty rights, or more favourable terms as may be agreed) should be allowed to settle.
After this date, it is expected that different rules will apply depending on whether the EU national:
It has been agreed that the following family members of those EU citizens who are in the UK at the time of Brexit should continue to enjoy free movement rights after Brexit:
It is envisaged that rights of family members whose relationship with the EU national was formed after the cut-off date will be subject to same rules governing family members joining British citizens (subject to a financial requirement of £18,600 income per annum or £62,500 in savings) or, if they themselves are EU citizens, the post-Brexit arrangements (which are yet to be determined).
While not required to do so, EU nationals (and their family members) may wish to apply to the Home Office for documents recognising their right of residence in the UK (permanent residence if having exercised Treaty rights for at least five years or for a registration certificate/residence card if the EU citizen is currently exercising a Treaty right).
There is a number of considerations to take into account when deciding whether to apply for documentation before Brexit:
Please enquire about our Permanent Residence and Registration Certificate of EU nationals briefings for further information.
New status for EU nationals lawfully resident in the UK prior to Brexit
EU nationals already in the UK (and indeed those coming to the UK by 29 March 2019) will continue to enjoy free movement rights until the UK leaves the EU. It is envisaged that their rights will remain protected for a two-year period (‘the transitional period’) until 29 March 2021 by which point those wishing to continue to live in the UK will be required to make an application to be granted one of the following:
It is imperative that EU nationals ensure that they continue to exercise a Treaty right in the UK by way of work, self-employment, study or self-sufficiency in order for their residence to be considered lawful for the purposes of settled status.
As the UK government has indicated that the requirement to hold CSI during periods of studies and self-sufficiency will be waived in applications for settled status, EU nationals who have not held CSI during such periods may prefer to wait and apply for settled status instead of a document certifying permanent residence.
All EU nationals and their family members who are resident in the UK at the point of Brexit (including those already holding a document certifying permanent residence) and who wish to remain in the UK after 29 March 2021 will be required to make an application for settled status. However, EU nationals and their family members who hold a document certifying permanent residence will be able to ‘swap’ it, free of charge, for settled status on the production of valid ID, proof of ongoing residence in the UK and additional criminality checks.
A new online application system is expected to start running from the second half of 2018. The administrative procedures for applications for the new status should be ‘transparent, smooth and streamlined’. Evidence for such applications should be no more than is ‘strictly necessary and proportionate’ and follow a similar approach to the current EU law provisions.
Status documentation should either be free of charge or cost no more than a UK passport, currently £72.50.
This will very much depend on the outcome of the next phase of the UK’s exit negotiations with the EU. It appears likely that EU nationals will continue to have ready access to the UK with only a simple registration process required.
EU nationals arriving in the UK following the transitional period (ie after 29 March 2021) will face new provisions, the exact details of which are yet to be determined.
For those simply visiting the UK for leisure or business there is unlikely to be a significant impact, and visa free travel is expected to continue, but for those seeking to work or study in the UK, it is expected to be more restrictive. It is possible that EU nationals may benefit from special provisions (less generous than Free Movement, but more generous than the current UK Immigration Rules for non-EEA nationals), such as a simple worker registration scheme. Alternatively, it may be necessary for nationals of EU member states to meet the same requirements of UK domestic immigration laws as non-EU nationals.
In July 2017, the Government commissioned the Migration Advisory Committee (MAC to report on the impact of leaving the EU and propose how the UK’s future immigration system could be altered to align with a modern industrial strategy with a full report expected in September 2018. The Home Secretary has stated that no final decision on the post-Brexit immigration regime will be made before the MAC has reported, however a further Government White Paper on the potential options is expected shortly.
Those who have acquired permanent residence and have held this status for at least one year and obtained a document certifying permanent residence (or will have done so by the date of exit from the EU) may wish to naturalise as British citizens. This should avoid the need for any further application following Brexit but may not be a suitable option for those whose country of nationality does not permit multiple citizenship.
Please enquire about our Naturalisation for EU nationals briefing for further information.
Again, there is no immediate change for British citizens in the EU. They should be able to apply to have their rights protected in their host member state.
The rights of British citizens currently residing 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. The UK wishes to secure the status of its citizens abroad and reciprocity will no doubt remain a key consideration in the negotiating positions.
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 and assessing alternative immigration solutions post-Brexit).
Laura Devine’s 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.
For further information on the implications of Brexit for employers and EU nationals, and our Brexit services, contact your assigned lawyer or email EUenquiries@lauradevine.com.
These FAQs were updated on 22 December 2017.