Following the recent publication of the initial negotiating positions from the UK and the EU on the terms of the Britain’s withdrawal from the EU, many are left to question what these respective proposals might mean for those EU citizens currently residing in the UK, and their families. Previous discussion focused on the rights of EU citizens in general terms, but nowhere are these questions more contentious than in the case of EU national spouses of British citizens.
Special rights for those EU citizens with a UK spouse?
For EU citizens generally, if you are considered to be ‘exercising treaty rights’ in the UK, or a ‘qualified person’ in the language of The Immigration (European Economic Area) Regulations 2016, you will likely have a right of temporary residence in the UK, or may even have acquired permanent residence if you have been so for five years or more. A ‘qualified person’ is one who is considered to be: a worker, a jobseeker; a self-employed person; a self-sufficient person; or a student. There are further requirements such as Comprehensive Sickness Insurance (CSI) and certain financial thresholds that must be met by workers and self-employed persons to name just a few.
So, what about those EU citizens who are married to UK partners? Are they afforded any special rights or guarantees that allow them to remain in the UK on the basis of the subsisting relationship with their UK partner? The simple answer is no.
Those ‘qualified’ EU citizens with UK spouses who have already accrued five years of continuous residence, will be treated almost exactly the same as those EU citizens who do not have UK partners. If however, you are an economically inactive or ‘unqualified’ EU citizen, for example a stay-at-home parent or househusband/housewife, you would not have an automatic right to residence in the UK even if you are married to a British citizen. Even if you do not claim any benefits and are fully supported by your spouse, unless you have Comprehensive Sickness Insurance (CSI) you will not be deemed to be ‘self-sufficient.’
The only recognisable advantage for those EU citizens with UK partners is tied to British nationality law. Under current legislation, those who have acquired permanent residence and wish to go on to apply for naturalisation as a British citizen are required to meet two main criteria:
- Be free from any immigration restrictions for a further period of twelve months – in other words remain in the UK with permanent residence status for a further year; and
- Be in possession of a permanent residence card when submitting a naturalisation application to become a British citizen.
However, UK law is more favourable towards those relying on their family ties to a British citizen when applying for naturalisation. The requirement to be free from any immigration restrictions for a further period of twelve months is not applied to those applicants who are married or in a civil partnership with a British citizen. Therefore, whilst these persons are required to hold a document certifying permanent residence, they do not have to wait a further twelve months after receiving this document before making their application to naturalise as a British citizen.
Although these provisions derive from UK law, and are unlikely to be affected by the Brexit negotiations, an EU national still has to rely on EU law to acquire permanent residence and be free from immigration restrictions, whether or not they have a UK spouse. Therefore, with proposed restrictions to free movement law already on the table, there can be no guarantee that EU nationals will be able to acquire this status once EU law is no longer enforceable.
It is, therefore, strongly advised that those who can, want to, and are ‘qualified,’ should apply for a document certifying permanent residence and British citizenship. Guidance on how to apply can be found here. Naturalising as a British citizen is the simplest way to secure a right to remain in the UK after Brexit and, indeed, to influence future policy by gaining the right to vote. Guidance on how to apply to naturalise as a British citizen can be found here. It is also advisable that those EU citizens wishing to acquire British citizenship check which EU countries allow for dual citizenship to ascertain whether or not they would have to surrender their citizenship rights in their home country by naturalising as a British citizen.
EU nationals not considered to be a ‘qualified person’
The Home Office negotiation paper does not speak to the rights of EU citizens that are not considered to be ‘exercising treaty rights,’ and discussion so far has centred around EU nationals who have already acquired permanent residence, or qualify to achieve this after five years continuous residence. But what about EU nationals, or their family members who do not yet have the right of permanent residence, and may not be able to secure it before Brexit is achieved? What happens to such persons?
This is one of the most contentious issues that derives from this discussion. As mentioned above, we are left with cases in which an EU partner of a UK citizen will not be granted leave to remain because this EU citizen may not earn enough to satisfy the financial requirements to be classed as a ‘worker,’ or has not held Comprehensive Sickness Insurance (CSI) during their time as a student or self-sufficient person. What then can these persons do to ensure that they are not removed from the UK after ‘Brexit day.’
The UK negotiating position proposes the introduction of a ‘grace period’ of at least two years during which those who have not yet accrued five years residence by the end of the ‘grace period’ will be able to apply for temporary status so that they can remain in the UK and apply for ‘settled status’ once they have reached five years. This gives those EU citizens who are already here, and are not regarded as ‘qualified persons’, time to take steps to ensure they start a period of continuous residence under the qualifying conditions. These steps might include gaining employment to be considered a ‘worker’ or obtaining Comprehensive Sickness Insurance (CSI) if you are a student or self-sufficient person who does not already hold CSI.
It should, however, be borne in mind that the EU and the UK are still in midst of negotiations on the rights of citizens after Brexit. At the time of writing, it appears that after Brexit, the UK may offer a major concession, which is that the UK will “no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident”. Negotiations are not yet concluded however and in the meantime, becoming economically active would appear to be a simple solution for many.
If it is not feasible to take such steps, the other option that these ‘unqualified’ EU citizens might consider their options under UK law. This would mean making an application under Appendix FM, and exploring the options that are currently available to third country nationals outside of the EU. Appendix FM is contained within the UK Immigration Rules, and provides route to settlement for partners and parents of UK nationals. Further discussion of Appendix FM is beyond a single blog post as the Immigration Rules are greatly complex and it is important to note that in any case immigration under EU law will be a far simpler process. Due to the nature and complexity of the application process, this is, therefore, a last resort option.
Finally, Theresa May has indicated that Britain will be bound by the European Convention on Human Rights (ECHR) for at least another five years. The significance of this for EU citizens in the UK is that it means they will still be able to rely on Article 8 of the ECHR in court should the worst-case scenario arise. Article 8 of the ECHR provides that ‘everyone has the right to respect for his private and family life, his home and his correspondence.’ More importantly, it provides that ‘There shall be no interference by a public authority with the exercise of this right’ except where it is deemed necessary by the court to avoid conflict with interests of national security and public safety amongst others.
As long as Article 8 and the ECHR is still binding in the UK, it will be extremely difficult for a court to suggest that removing an EU citizen from the UK, when they have a married UK partner, does not infringe upon their right to private and family life. For example, in the case of an EU citizen who is married to a UK partner, where the EU citizen does not work and does not have Comprehensive Sickness Insurance (CSI), they will not be allowed to remain in the UK under both the current EU and UK negotiating proposals. However, Article 8, whilst still enforceable in the UK, will undoubtedly provide another layer of security for those ‘unqualified’ EU citizens living in the UK.
Put simply, there are no guarantees at this stage and no proposals made by the UK or the EU are final or binding. However, it is important for EU citizens who fall under this category to acknowledge that no special provisions are currently being offered to them because of their relationship with a UK spouse, and one must look to consider the above solutions and alternatives should the worst-case scenario arise.
A brief summary of the rights of EU spouses of British citizens post-Brexit is also available as a fact sheet on the 'Resources' section of our website.