Last week, the Home Office published information for European Union nationals who are living in the UK. The assurance at the beginning of the guidance is worth re-iterating:
“You do not need to do anything as a result of Article 50 being triggered. There will be no change to the rights and status of EU nationals living in the UK while the UK remains in the EU.
Under EU law you don’t need a document to confirm your residence status in the UK”
This is correct. The Regulations which apply to European nationals and their family members were recently changed and came into force on 1 February 2017. There were a few changes to the application process (such as making the form compulsory) and significant changes for family members of British citizens who are seeking to rely on a Surinder Singh right of residence (see here for more information), however there were no changes to the substantive rights of EU citizens and their direct family members. Similarly there was no change to the directly effective EU law which governs residence rights, only a change in the legislation which implements these rights in the UK. This is an important distinction as if the UK Regulations are incompatible with EU law, EU law prevails.
Given that the new Regulations have only recently come into force, there are unlikely to be any further changes in the near future. The triggering of Article 50 begins a two year negotiation process. EU law will continue to apply in the UK until Brexit day which means that there is still a period of two years within which EU nationals and their family members can rely on their EU free movement rights and apply for documentation as evidence of these rights.
The Government’s guidance goes on to suggest that, instead of applying for documentation, EU nationals living in the UK may wish to sign up for email updates about the Brexit negotiations so that they are updated about developments that might affect them, including the steps that they may need to take to confirm their status in the UK after the UK has left the EU. Signing up for updates is certainly worth doing. However, I would not suggest doing this as an alternative to applying for residence documentation.
There is still no guarantee from the Government that the position of EU nationals and their family members in the UK will be protected post-Brexit. It is surely better to begin the process of applying for documentation now - to ensure any issues such as excessive absences, lack of comprehensive health insurance, or lack of documentation to evidence employment/residence - can be resolved sooner rather than later. Waiting to be prompted by an update from the Government would risk being caught up in an influx of applications following an announcement regarding an imminent change in the law. The guidance repeats numerous times that:
“There will be no change to the rights and status of EU nationals living in the UK while the UK remains in the EU.”
This is of course true. However, within the next two years (subject to a mutually agreed extension of the negotiation period), the UK will be leaving the EU. I would suggest that it is better to proactively protect you position whilst the UK remains a member of the EU rather than simply sitting back and waiting to see what happens as the Home Office have suggested.
The Home Office may be trying to reduce the burden on the European case working department by encouraging EU nationals not to apply for residence documentation. This would make sense if they could guarantee that the rights of EU nationals and their family members in the UK would be protected post Brexit or provide information on how applications based on residence under EU law will be dealt with post-Brexit. As highlighted in earlier blog posts here and here, not all EU nationals in the UK have a right to reside: they must be exercising treaty rights. Will all EU nationals in the UK be permitted to remain post-Brexit or only those that are exercising treaty rights? Will applications for residence documentation be necessary? Will there be a cut off date for acquisition of a right of permanent residence? When will this cut off date be? All of these questions remain unanswered.
In the absence of any information, assurance or guidance about how the millions of EU citizens and their family members in the UK will be treated after the UK leaves the EU, it is entirely sensible to apply for documentation now to prove your right to reside in the UK.