On 11 July 2016, the Government issued a statement addressing the status of EU nationals in the UK. The statement begins with the important reminder that: “...[t]here has been no change to the rights and status of EU nationals in the UK, and UK nationals in the EU, as a result of the referendum.” This is, of course, correct: the referendum did not change the law and, in strict legal terms, nothing has changed. However within the next few years the UK will leave the EU. This will result in drastic changes to the law in various areas including the rights of EU nationals in the UK. The extent of these changes is currently unknown and will depend on the outcome of the Brexit negotiations. Thus, in practical terms, a lot has changed: the future of EU nationals in the UK has never been so uncertain.
The Government statement indicates that they “fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected” upon withdrawal from the EU. However this is at odds with our new Prime Minister, Theresa May’s, refusal to guarantee the position of EU citizens in the UK just over one week ago.
The statement goes on to address the acquisition of a right to permanent residence after 5 years stating that: “EU nationals who have lived continuously and lawfully in the UK for at least 5 years automatically have a permanent right to reside.” This is correct; however misleading. In this context, the word ‘lawfully’ really means in accordance with the EU Treaties and the Immigration (EEA) Regulations 2006.
An EU citizen is only entitled to live in the UK if they are ‘exercising treaty rights’ or, in the language of the 2006 Regulations, is a ‘qualified person’. A qualified person is: a worker; a jobseeker; a self employed person; a self sufficient person; or a student. Each of these terms is defined by EU law. A worker must be in ‘genuine and effective’ employment: purely marginal or ancillary work is insufficient. A jobseeker must be registered with the job centre and must have a genuine chance of finding employment (and be able to provide evidence that this is the case). A self employed person must be registered with HMRC and must be participating, on a stable and continuous basis, in the economic life of the UK. A self sufficient person must have comprehensive health insurance provide evidence that they have sufficient funds in the bank to demonstrate that they will not be reliant on public funds. A student must be enrolled on a course of study, have comprehensive health insurance and declare that they have sufficient resources not to become a burden on the social assistance system of the UK.
The requirement for students to have health insurance does not appear to be widely known and often causes problems when it comes to applying for a document certifying permanent residence. Without health insurance, an EU national student will not have resided in the UK ‘lawfully’ and will not have acquired permanent residence.
Given that the Government’s statement does not address any of these issues, you could be forgiven for assuming that mere presence in the UK is sufficient. Unfortunately, it is not this simple. In order to be successful, an application for permanent residence must be accompanied by comprehensive evidence that the EU citizen has been ‘exercising treaty rights’ (i.e. doing on of the activities defined above) for a continuous period of 5 years.
The Government goes on to state that there is no requirement to register for documentation to confirm a right of permanent residence. This is correct, unless you wish to apply for British citizenship. Since November 2015, EU nationals with permanent residence have been required to apply for a document certifying permanent residence before they can apply for citizenship, adding delay and complexity to the process. There is no mention of this requirement in the Government’s statement which, immediately after stating that no documentation is required for permanent residence, states that “EU nationals who have lived continuously and lawfully in the UK for at least 6 years are eligible to apply for British citizenship if they would like to do so.” This is an oversimplification: it is necessary to apply for a document certifying permanent residence first, before an application for citizenship can be made.
Whilst obviously aimed at assuaging concerns of EU nationals in the UK following the result of the referendum on 23 June 2016 (a laudable aim), the Government’s statement oversimplifies an incredibly complex area of law and, as a result, is misleading and will no doubt cause many EU nationals to waste time and money making applications to the Home Office that are bound to fail.