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 UK Government took the first official step towards leaving the EU by triggering Article 50 of the Treaty on the European Union (the Lisbon Treaty) on 29 March 2017. This commenced the two-year deadline for the UK to leave the union (unless both sides agree to an extension), making 29 March 2019 the date the UK is due to leave the EU.

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

EEA citizens already in the UK (and indeed those coming to the UK before 29 March 2019) 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 agreed between the Government and the EU what that permission will be, where the line will be drawn and what the application process may involve.

On 26 June 2016 Theresa May outlined the UK’s proposals to the EU for EEA nationals in the UK. In simplified terms the proposals include:

EEA nationals (and their qualifying family members) may therefore still 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 advise that they do so, subject to certain considerations. It is now mandatory to obtain a permanent residence document before applying to naturalise.

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. The Government has clearly signalled its intention to end free movement as we currently know it. However, in light of the proposed ‘grace period’ of up to two years after exit, it appears likely that EEA nationals will continue to have relatively ready access to the UK during that time.

EEA nationals arriving in the UK following Brexit and the end of any grace period 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 EEA citizens may benefit from special provisions (less generous than Free Movement, but more generous than the 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 migrants.

The Government commissioned the Migration Advisory Committee (MAC), on 27 July 2017, 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. The MAC launched its call for evidence on 4 August 2017 and will report 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 in the meantime, a further Government White Paper on the potential options is expected by the end of 2017.

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

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

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. The UK wishes to secure the status of its citizens abroad and reciprocity will no doubt remain a key consideration in the negotiating positions.

What action can EEA nationals and their family members take?

EEA nationals (and family members) who are already in the UK exercising Treaty rights may wish to 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. Such documentation is purely optional however it appears that a more streamlined procedure may apply for holders of such documents when applying for settled/temporary after the grace period. Further, for those wishing to naturalise as a British citizen, it is currently mandatory to hold a document certifying permanent residence.

An online application service for EEA residence documentation is now available to many EEA nationals and their family members, together with an EU Passport Return Service, enabling applicants to retain their original passports whilst their applications are pending. The service is not available to all applicants, for example those applying on the basis of retained rights or under the Surinder Singh route.

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 or by the end of the grace period) may wish to consider applying to naturalise as British citizens. This will avoid the need for any further application following Brexit. However, this will not be a suitable option for all individuals, particularly those whose country of origin does not permit dual nationality.

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 invite clients to take part in our consultation work and share views on how the UK’s immigration system should be adapted, post-Brexit.

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