EU Nationals in the UK
In the wake of the Brexit referendum, in June 2016, in which the 51,9% of the electorate decided that the United Kingdom should leave the European Union, the 2.37 million E.U nationals living and working in the U.K found themselves in a position of high uncertainty. This was the first time, since the establishment of the Union citizenship in the Treaty of Maastricht in 1992, that the nationals of an E.U Member State residing in another E.U Member State, started wondering about their legal position and what to do in order to ensure their right to stay in the U.K.
At the time of writing this article- November 2017- the U.K has already triggered Article 50 TFEU which serves as an exit clause for the Member States which wish to withdraw for the European Union. More specifically, this article indicates that the respective Member State should notify the European Council of its intention to leave and start negotiations that will result in a withdrawal agreement with the Union within two years.
Even though the negotiations have already started and the U.K is expected to leave the European Union by March 2019, no final decision has been reached regarding the position of European Union nationals, living and working in the U.K, in the post Brexit era. However, despite of this uncertainty, until the negotiations are completed, the rights of the E.U in the U.K remain the same as they have been for the last 25 years. The Treaty of Maastricht, established for the very first time the concept of the European citizenship which is guaranteed to “every person holding the nationality of a Member State” and paved the way for the creation and development of one of the most fundamental E.U rights, “to move and reside freely within the territory of the States”.
In order, for the right of the free movement of people to be exercised as effective and efficiently as possible, the Directive 2004/38/EC on the right of the citizens of the Union and their family members to reside and move freely within the territory of the European Union, was adopted in 2004 and classified the free movement of E.U nationals into three chronological categories; right of residence for up to three months, right of residence for up to five years and right of permanent residence.
First of all, according to Art. 6 Directive 2004/38/EC, Union citizens wishing to reside on the territory of another Member State for a period of three months or less, have the right to do so without any conditions or formalities applying, other than the requirement of holding a valid passport or identification card. In practice, this means that in case an individual who is a national of any of the other 27 E.U Member States, wishes to move in and reside in the U.K for up to three months, will be able to do so by having either an I.D or a passport, of an E.U Member State, that is still in force.
In case that an EU citizen wishes to stay for a period more than three months, he will be able to do so either by being a worker or self-employed in that Member State or by having sufficient resources and a comprehensive sickness insurance that will ensure that will not become a burden on the host Member State’s social assistance system. The right of moving and residing freely with the EU territory for more than three months, extends also to EU citizens who are either enrolled to a public or private institution, accredited by the host Member State, to follow a course of study or are undertaking a vocation training, and the same time have both a sickness insurance cover and sufficient resources in order “not to become a burden on the social assistance system…during their period of residence”. As it is understandable, Art. 7 Directive 2004/38/EC is trying to ensure the free movement of people for as many different groups as possible and for this reason is providing some exceptions where a Union citizen who is no longer a worker or self-employed can retain his status.
For instance, when a European Union citizen is temporarily unable to work due to a sickness or accident, or when he is a registered job -seeker who had been employed for more than one but he is in duly involuntary unemployment at the time being, he has still the right to reside in the respective host EU state. It should also be noted, that in case that an EU national intends to reside in a host EU country for more than three months, he will have to register to the relevant authorities within, at the very least, 3 months from the date of arrival. So, when applied in the case of the U.K, the E.U nationals have the right to reside in the U.K for a period longer than 3 months as longs as they can prove that they have a job that secures them an income in order to sustain themselves or have sufficient financial resources in case that are not employed.
In addition, students, trainees are entitled to the same rights while at the same time unemployed E.U nationals can retain their status as long as they fulfill the requirements of Art. 7 Directive 2004/38/EC. In any case, applying for a National Insurance Number is a mandatory requirement for all E.U citizens moving in the U.K to either work or study and reside for more than three months. Finally, in case, that an EU national has been residing in the UK for a continuous period of more than five years then he has the right of the permanent residence.
Temporary absences of maximum six months per years or maximum 12 months for important reasons such as compulsory military service, serious illness or pregnancy, do not affect the continuity of residence. However, it should be noted that the permanent residence after acquired, can only be lost if the EU national is absent from the UK for more than two consecutive years.
Furthermore, when a E.U citizen applies for a permanent residence, the U.K shall certify permanent residence after verifying the duration of residence and issue the relevant document as soon as possible. It should also be noted that the rights of moving and residing freely within the EU, apply to the third country nationals who are family members, of the EU nationals residing in the host Member State. These family members can be, according to Directive 2004/38/EC, the spouse, the partner, the dependent direct relatives and the direct descendants who are under 21 years old or the dependents of the EU national himself or of his spouse or partner.
Due to the fact, that as it was already mentioned, the negotiations between the U.K and the E.U officials regarding the status of the EU nationals residing and working in the UK, are still ongoing, the UK government has announced that for the time being and until the UK officially leaves the EU, there is no need for the EU nationals to do anything. But what we know for sure, so far, is that the permanent residence status will be still offered to the EU nationals who have been living in the UK for five years continuously and will enable them to live indefinitely and freely in the UK as well have access to public funds and services, by providing them with the “settled status”.
In addition, these EU nationals will be able to apply for the British citizenship if they wish to do so. In the case, of George Papadakis, for instance, a Greek who have been residing and working in London since 2008, he will still be able to exercise his free movement rights after the UK leaves the EU on April 1st 2019. Since he has been living and working in England for more than five years, he is automatically entitled to get the settled status under the new UK immigration scheme.
When he will receive both the settled status and respective document verifying this, he will have secured his immigration status and there is nothing else that he will be required to do after the UK leaves the EU. Although there is no need to apply automatically for the settled status, as a grace period will be provided, he will still have to request a permission to stay from the Home Office before the grace periods expires.
For the rest EU nationals, their status will depend on the determination of the cut-off date, which will be decided by the negotiators, with the earliest being the date when Art. 50 TFEU was triggered and the latest the date that the UK will officially exit the EU.
More specifically, the EU nationals who moved in the UK before the cut-off date but by the time the UK leaves the EU, in March 2019, have not lived in the country for five years, will be able to apply for the settled status as soon as they reach the five-year threshold. Katarzyna, originally from a small town near Warsaw, has been living and working as a legal advisor in London for a year now, and will have been a UK resident for 2,5 years by the time the UK leaves the EU. In this case, since she arrived in the UK before the cut-off date, she will be able to continue residing and working in the UK during the grace period of blanket permission.
In case that before the end of the grace period she will have been living in the UK for five years, then she will be able to also reside permanently in the UK by applying for the settled status. If however, she will not have lived in the UK for five years by the end of the grace period, then she will have to apply to the Home Office for temporary residence permit, which will allow her to reside and work freely, until she meets the five year threshold. As soon as she has been a resident for five years, she will then be able to apply for settled status as well.
The EU nationals, on the other hand, who arrived in the UK after the cut-off date will have to apply for a permission to continue residing in the UK according to the future immigration policies regarding EU nationals. This means that in this case, the free movement rights will end at the moment that the UK leaves the EU in April 2019. Even though these EU nationals will be able to continue residing within the EU during the grace period, they will have to apply for a permission to stay after the end of that period and in case that the application is successful they will be granted a temporary residence permit.
However, after this permit expires, these EU nationals will have to obtain a subsequent permission which will depend on the immigration rules enforceable at that time and will again have a temporary nature. In the case of the family dependents residing or joining their EU national relatives, the cut-off date will not be applicable and will be able to apply for settled status after five years of continuous living in the UK.
Thus, based on the current information provided by the UK government regarding the new immigration scheme, it is totally understandable for the EU national residing and working in the UK to feel uncertain about what will be their legal status in the near future and how it will affect their lives. However, it is very possible based on the government offers announced so far that a big percentage of the overall EU nationals will be granted the settled statues and the permit to continue residing permanently in the UK. In any case, in order to have a clear picture of what the future holds for the EU nationals, we will have to wait until the completion of the ongoing negotiations.
The good news is that due the fact that the UK will have to leave the Union, at the very latest, by end of March 2019, the anticipation for the EU nationals is almost over.