It has been almost a month since the United Kingdom (‘UK’) voted to in favor of exiting the European Union (‘EU’); those wanting to remain are still struggling with accepting the result due to the clear absence of a definitive plan on how the UK plans on exiting the EU. Under EU law, the legal situation of EU nationals in the UK continues unchanged until the UKactually leaves the EU following formal notification of withdrawal from the EU under Article 50 of the Treaty of the European Union and the conclusion of exit negotiations. The decision about when to trigger Article 50 and start the formal process of leaving the EU will be for the new Prime Minister, who has already confirmed confirmed that Article 50 would not be triggered before the end of 2016. Even with this confirmation from Teresa May, a level of uncertainty remains as both EU nationals living in the UK and UK citizens abroad are worried about their future.
The Cabinet Office, Home Office and Foreign & Commonwealth Office published a report 11 July 2016 releasing an official statement confirming that UK nationals in the EU would not be affected as a result of the referendum. However, given the current state of uncertainty there a predominantly strong view that EEA nationals and their families should consider taking steps as soon as possible to protect their status.
The statement recognizes the values and contributions made by EU nationals in the UK and the government has indicated that regardless of when Article 50 will be triggered that there will be an emphasis on ensuring that EU nationals who have lived continuously and lawfully in the UK for at least 5 years will automatically be granted the right to remain and citizens who have been residing in the UK for 6 years or more will be eligible to apply for citizenship.
The question posed as a result would be regarding the status of EU nationals who have not been here for 5 years or more. The official statement states the following:
- EU nationals continue to have a right to reside in the UK in accordance with EU law. EU nationals do not need to register for any documentation in order to enjoy their free movement rights and responsibilities. For those that decide to apply for a registration certificate, there has been no change to government policy or processes. Applications will continue to be processed as usual.
- Non-EU family members of EU nationals must continue to apply for a family permit if they wish to enter the UK under EU law, and they do not have a residence card issued by a member state. There has been no change to government policy or processes, and applications will continue to be processed as usual.
- Extended family members of EU nationals must continue to apply for a registration certificate (if they are an EU national) or residence card (if they are a non-EU national) if they wish to reside in the UK. There has been no change to government policy or processes, and applications will continue to be processed as usual.
- Irish nationals enjoy separate rights, under various pieces of legislation, which allow Irish nationals residing in the UK to be treated in the same way as British nationals in most circumstances. There is no change to this position.
- Croatian nationals might continue to need to apply for a registration certificate to be allowed to work in the UK under the transitional arrangements that were put in place when Croatia joined the EU in 2013. The type of registration certificate that they might need will depend on whether they need permission to work in the UK, and what they will be doing. There has been no change to government policy or processes, and applications will continue to be processed as usual.
While the doubt around Brexit remains prominent, it is crucial that EU nationals and UK citizens alike wait for the government’s movements with regards to this issue. However, as was the case before the referendum, EU nationals will not be removed and cannot be removed unless they are deemed as being individuals whom pose a genuine threat to the public.