What will happen to EU citizens currently living in the UK?

The result of the referendum on the UK’s membership of the European Union was announced this morning: 51.9% of votes were in favour of leaving the EU and 48.1% in favour of remaining. As a result, after 43 years of membership, the UK will now begin the process of leaving the European Union.

However, what will happen to EU citizens that are currently living and working in the UK? At present, EU citizens enjoy free movement within the territory of the EU under Article 21 of the Treaty on the Functioning of the European Union (TFEU): they are entitled to live in the UK providing they are working, studying or are economically self sufficient. Further detail on the right to free movement is provided in the Citizens’ Rights Directive (Directive 2004/38/EC), which is an instrument of EU law. The provisions of the EU Treaties, and certain secondary legislation enacted under the Treaties such as the Citizens’ Rights Directive, are directly applicable in UK law by virtue of section 2(1) of the European Communities Act 1972, an Act of the Westminster Parliament. The Directive is also given effect in UK law by the Immigration (European Economic Area) Regulations 2006, enacted under section 2(2) of the 1972 Act.

Upon withdrawal from the EU, the EU Treaties and all other legislation (such as Regulations and Directives) will cease to apply in the UK (Article 50(3) Treaty on European Union).  Article 70 of the Vienna Convention on the Law of Treaties states that the termination of an international treaty does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination. This provision had led many to claim that the rights of EU citizens in the UK would remain unaffected following UK withdrawal. However, as highlighted by Sionaidh Douglas-Scott of Queen Mary University of London “reference to ‘the parties’ in Article 70 is a reference to the parties to the treaty – i.e. States. Article 70 does not directly address individual rights.” It is therefore unclear whether EU citizens could derive any benefit from this provision. The European Treaties themselves are silent on the question of ‘acquired rights’ (i.e. rights that are not automatically revoked if a treaty or law no longer applies). Douglas-Scott concludes: “absent a Withdrawal Agreement which gives clear protection of acquired rights, existing national, EU and international law does not offer a great deal of protection. So the content of the Withdrawal Agreement would be crucial."

At the domestic level, the European Communities Act 1972 will most likely be repealed. It will be up to the Westminster Parliament (and where appropriate the Scottish Parliament, Welsh Assembly and Northern Irish Assembly) whether to repeal legislation implementing specific aspects of EU law, such as the 2006 Regulations which implement the right to free movement, and whether such repeal is to be subject to any transitional provisions. Unpicking the labyrinth of primary and secondary legislation which implements EU law, and deciding what to repeal and what to preserve to ensure consistency and continuity, will not be an easy task and will no doubt take several years.

In relation to free movement rights, normally when there is a major change in UK immigration law, transitional provisions are enacted to preserve the old system for migrants presently in the UK. This is what happened when new Immigration Rules for foreign national spouses were introduced in July 2012 to increase the probationary period before being eligible for Indefinite Leave to Remain from 2 years to 5 years, introduce a minimum income requirement and impose onerous documentary requirements. The new requirements did not apply to migrants who had already been granted leave under the rules in place before July 2012.

It remains to be seen whether Parliament will ensure the rights of EU citizens living in the UK will be protected upon repeal of the 1972 Act and 2006 Regulations. Much will also depend on the precise terms of the Withdrawal Agreement reached between the UK and the EU and the nature of the UK’s relationship with the EU going forward (for instance whether the UK will be a member of the European Economic Area, like Norway and Iceland, or the European Free Trade Association, like Switzerland). That being said, given the focus on the perceived problem of European migrants during the referendum campaign, it is unclear whether there will be public support for provisions which ensure that EU citizens in the UK can continue to live and work here. As such, European citizens living in the UK should protect their position by applying to the Home Office for a residence permit recognising their right to live in the UK and, if they have been here for over 5 years, begin the process of applying for British citizenship.