EU nationals in the UK - some reassurance

Brexit has been in the news quite a lot recently. The second reading of the EU (Withdrawal) Bill and the leaked Home Office policy document on the rights of EU citizens after Brexit (covered on this blog here) have drawn attention, yet again, to the uncertain future which lies ahead.

As a lawyer interested in public law, individual rights, and immigration I find Brexit quite interesting. For those interested in reading commentary on the legal issues raised by Brexit, I would recommend following Colin Yeo’s Free Movement Blog, Mark Elliot’s Public Law for Everyone blog, Steve Peers’ EU Law Analysis blog, and the UK Constitutional Law Association Blog.

However, many people reading this will not be interested in commentary reviewing the legal intricacies of Brexit. They want to know how Brexit will effect their ability to continue living in the UK. I do not envy those who, every time Brexit is mentioned in the news, are faced with a wave of nervous trepidation as they try to figure out how the new development (whatever it may be) might effect them.

For people in this situation, I have four things to say which will hopefully provide some modicum of comfort in amongst the current uncertainty:

  1. If you have lived and worked in the UK for over 6 years there is still plenty of time to apply for a document certifying permanent residence and then British citizenship, if this is something you would like to do. Once you are a British citizen you can stop paying attention to the Brexit negotiations and the seemingly constant announcements and developments. As a British citizen you will have an unqualified right to continue living in the UK. Information on the criteria for permanent residence is available from our permanent residence information sheet available here. If you would like assistance with your application for permanent residence and/or citizenship, we are happy to help: get in touch via our contact page and one of our solicitors will get back to you as soon as possible.  
  2. The UK Government and EU Commission are agreed that EU citizens currently residing in the UK (and for that matter UK citizens currently residing in the UK) should have their status protected. Both the EU’s proposal and the UK’s proposal seek to ensure EU nationals currently in the UK are able to remain permanently, albeit they differ on the detail. The detail is, of course, important. However, the overriding objective is to ensure EU nationals in the UK are able to stay. For some, the UK’s proposal (in particular the concession that economically inactive EU citizens will no longer require comprehensive health insurance) will be preferable. For others, the EU’s proposal (which allows EU citizens to retain all rights they currently have) will be preferable. Whatever is implemented, there will be some who encounter difficulty. However the vast majority of people will be able to continue living in the UK, and if necessary obtain documentation to prove this, without any issues. Our summary of the UK and EU negotiation positions can be found here
  3. Although the UK is likely to withdraw from the UK on 29 March 2019, which in the grand scheme of things is not very far away at all, under the UK’s proposal there will be a two year grace period to give EU nationals time to make an applications for settled status. The Home Office cannot deal with a sudden influx of applications: it is therefore in their own self interest to make the system as streamlined as possible and to allow people a reasonable period of time to make applications.
  4. The European Convention on Human Rights (ECHR), which contains the right to private and family life, will remain in place after Brexit. The ECHR does not form part of EU law. It is an entirely separate international treaty which was signed by the UK 1950, years before the UK joined the EU. The ECHR is implemented in the UK through the Human Rights Act 1998. The Conservative Party has, in the past, proposed repeal of the Human Rights Act 1998 and withdrawal from the ECHR. However these proposals have been put on hold given the gargantuan task of legislating for Brexit. As such it appears the ECHR will remain enforceable in the UK for the foreseeable future. The right to private and family life is used primarily by non-European migrants to establish their right to live in the UK. However, it is a reassuring fail-safe for any EU nationals who are unable to meet the requirements of the new post-Brexit immigration system as requiring someone who has established a life, a home, and family in the UK to leave the country is often a disproportionate interference with the person’s right to respect for private and family life under the ECHR.