24 Oct 2016, 30 mins ago

On 23 June 2016, the UK voted in a referendum to leave the European Union (EU). The impact that this will have on the rights of EEA nationals, if any, is currently unknown.

At present EEA nationals still have the same rights as they did before the referendum and it is expected that they will continue to enjoy these rights for at least the next two years. However, given the uncertainty ahead we recommend EEA nationals seek to evidence their status and period of stay in the UK as soon as possible to put them in the strongest position should there be changes to their rights in the UK.

The following is an outline of options that may be available, based only on the law as it currently stands. We cannot even begin to speculate on timeframes for, or the content of, future changes in immigration law.

EEA Nationals

EEA nationals are nationals of EU Member States plus nationals of Iceland, Liechtenstein and Norway, and (for the purposes of UK law) Swiss nationals. Specifically, EU nationals are nationals of: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK. We will refer to them collectively as EEA nationals. There are separate requirements for Croatian nationals who are subject to transitional restrictions on their free movement which we do not detail here.

Qualified Persons

A “qualified person” is an EEA national who is exercising EEA Treaty Rights in the UK, which broadly means that they are one of the following:

  • Worker (there are separate provisions for those who cannot work due to incapacity and those who are temporarily not working including for maternity leave)
  • Job-seeker (subject to certain conditions)
  • Self-employed (this has different requirements to an employee)
  • Student with comprehensive private medical insurance in the UK
  • Self-sufficient, i.e. they have more than adequate resources to support themselves and any dependants, and they have comprehensive private medical insurance in the UK

For an EEA national to continue residing lawfully in the UK for longer than three months they need to be exercising EEA Treaty Rights i.e. fall under one of the above categories.

In the UK for less than five years

An EEA national who is exercising Treaty Rights in the UK is not required to have proof of their status as a “qualified person” but we suggest individuals consider obtaining a registration certificate which is proof of their right to reside and work in the UK.

Individuals may be able to apply for a Family Permit or Residence Card if they are from outside the EEA and they are the family member, or extended family member, of an EEA national. Please note that family members are specifically defined and their rights can also depend on the type of Treaty Rights that the EEA national is exercising. There is also a specific set of Regulations that apply in such circumstances. If you require further information about this then please contact us.

In the UK for five years or more

An EEA national who has lived in the UK as a “qualified person” continuously for five years may be entitled to permanent residence status and should consider applying for a permanent residence card. Family members of EEA nationals may also be able to apply for a permanent residence card if they too have lived continuously in the UK for five years with the EEA national who has been a “qualified person” throughout this continuing period of residence.

British citizenship

Please note before considering whether to apply for British nationality that not all countries allow individuals to hold dual nationality and therefore individuals should seek advice from the authorities of any countries of which they are a national prior to applying for British nationality. It is worth noting that it is also unknown to what extent the free movement rights of British passport holders will be restricted in EEA countries going forward.

An EEA applicant, over 18 years old can usually apply for British citizenship (known as naturalisation) after six years in the UK, this includes five years of residence, plus an additional year where they can prove they have held permanent residence. The relevant period for nationality can vary and this may be different, particularly for those with a British spouse. There are specific requirements to qualify for British nationality including for residency, good character and English language. Please ask us for advice.

All applications for naturalisation are discretionary and there is no automatic right to become a British citizen.

For children the route to becoming a British national will depend on whether they were born in the UK or abroad and the immigration and nationality status of their parents. They may be born British citizens, be entitled to British citizenship or be able to apply for discretionary registration as a British citizen. For further advice on British nationality for children please contact us.

Keeping a record

Regardless of whether an EEA wants to make an application at this time, we recommend that EEA nationals gather and keep records of:

  • continuously exercising Treaty Rights such as student confirmation letters/employment contracts,
  • their comprehensive medical insurance (where required),
  • their absences from the UK,
  • their accommodation in the UK, such as tenancy agreements and utility bills, and
  • any other evidence of their ties to the UK.

Collating these documents now and going forwards could prove very helpful for future immigration applications.

NOTE: No reliance should be placed on the above as it is provided purely as an outline of applicable procedures and rules on EEA free movement provisions and British nationality law. Before pursuing any application we strongly recommend that formal advice is taken. Should you wish to obtain advice please contact us.