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The status of EU nationals and dependents after Brexit

What will be the position of EU nationals and their dependents in the UK after Brexit?

European nationals ( and their third country dependents) within the 27 EU countries that comprises the European Union, who are exercising Treaty rights of work, in the main, be it employment , self- employment , studies, or as persons of means able to look after themselves without recourse to public funds, have become anxious since the referendum of Thursday 23rd June 2016 as to their future status in the UK after the United Kingdom finally leaves the European Union which is envisaged to take place on 30 March 2019.

EU nationals and their families in the UK are looking to receive a guarantee from the British government as to their rights to remain in this country after Brexit, and obviously, need to plan for their future.

This article endeavors in a simplistic way to explain, some of the problem areas after Brexit, taking into account the current status of the negotiations and the flavour deduced from the discussions the UK government has had with the negotiators in Brussels, on behalf of the 27 EU members.

The current free movement rights of EU nationals within the UK will most probably come to an end on 30 March 2019 but there will most likely be transitional provisions between the EU 27-member states and the United Kingdom. Whilst negotiations have gone some way to gain the confidence of EU nationals that their position in the UK should be secure, there are various gaps in the current negotiations concerning, for example, the rights of residence of family members of EU nationals who are third-country nationals, that is to say not citizens of the European Union.

Furthermore, insofar as children in education are concerned, the situation needs to be properly clarified.

Former family members who at present have retained rights of residence under the Citizens Directive after the death of the EU citizen, and after the termination of the marriage or registered partnership with an EU citizen, at present remain unprotected insofar as negotiations are concerned. The same can be said with regret, in relation to the right of former family members, to acquire permanent residence in the UK after the five years qualifying period which at present they are entitled to under Article 18 of the Citizens Directive.

It may be that the omission of any discussions in regard to the above categories of persons, is an innocent one, because there is no obvious reason to discriminate against third country family members who have existing rights of residence in the UK under the Citizens Directive 2004/ 38EC and also under the Immigration (European Economic Area), Regulations 2016.

There is some concern that the rights of residence based upon EU citizenship under Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU), may be under threat after Brexit. Article 20 implies a right of residence for family members irrespective as to whether they are EU nationals or nationals of third countries, where their stay in a Member State, such as the United Kingdom, is necessary to ensure that an EU national can remain within the EU. See for example the decision of the CJEC in the matter of Ruiz Zambrano, and also in the matter of Chen. This latter case makes provisions for the right of residence of EU citizen children under the age of 18 who are self-sufficient through for example their third-party parents.

Furthermore, where an EU citizen exercising Treaty rights in another Member State returns to their own Member State after at least three months of qualifying residence in the other member state, whereas article 21 of TFEU at present requires that both they and their family members who resided with them irrespective of nationality have the benefit of the Directive and be able to reside and obtain a residence card in the national Member State of the EU citizen, the Surrender Singh scenario, again at present there is a gaping hole in the negotiations concerning the rights of residence based on EU citizenship of those third country nationals.

Negotiations between the United Kingdom and Brussels appear to concentrate on the rights of EU citizens which flow from Article 21 TFEU. There is, therefore, no mention of the scenarios under the Zambrano or the Chen principles, and no suggestion that the residents of these family members will be protected after Brexit.

Furthermore, those who at present are able to accumulate 10 years of lawful residents partly under current EU legislation and partly under the immigration rules may find it difficult after Brexit to count both periods as part of their lawful residence in the UK for the grant of permanent residence.

Accordingly, the period spent with an initial right of residence as a job seeker searching for employment (which counts as exercising treaty rights at present), or whilst the child completes their education may not count towards permanent residence after Brexit, in totting up the period of 10 years lawful residence in the UK.

Periods under the Zambrano and Chen principles at present do not count towards a right of permanent residence in the United Kingdom. See the immigration (European economic area) regulations 2016, regulation 15(2). It is doubtful whether they will count toward such residence after Brexit. In addition, there is uncertainty at present whether time spent within these excluded categories count to the entitlement of indefinite leave to remain after 10 years lawful residence in the United Kingdom. The Home Office guidance on long residence of 3rd April 2017 at page 24 implies that indefinite leave to remain should be granted on a discretionary basis where Treaty right is exercised, and since it is discretion it will most probably involve exercising Treaty rights at the date of the application, and other compassionate elements may be taken into account. Home Office officials have taken the position that this does not apply to the excluded rights category. Ultimately judicial review is always a possibility for the disgruntled applicant. The position of these excluded categories is therefore uncertain under current discussions with respect to Brexit.

At present, there are a number of economically inactive individuals who are EU nationals who are not qualifying residence. For example, economically inactive students or persons of means without possessing comprehensive health insurance will not obtain residence under their current legislation. In addition, workers or self-employed nationals whose work and income from it are deemed insufficient to amount to an effective and genuine economic activity will not obtain residence in the United Kingdom. Whilst these individuals have been generally tolerated by the United Kingdom authorities and EU citizens or family members are not obliged to register their presence and historically the United Kingdom has not taken steps to remove such persons, there is no guarantee as to what will happen in the future in relation to them.

In conclusion, the future rights of all EU citizens and their family members living in the UK at present are uncertain after Brexit. Although the government has indicated that EU citizens and their family members who are lawfully resident in the UK before a specified date, still uncertain in that regard as to that date, will be allowed to stay, that is still a matter for which you will need to watch this space!

At present, the government has said that if EU citizens and their family members meet the requirements for permanent residence, either before or during the expected transitional period for implementation, they will be entitled to apply for settlement status. There remains a gaping hole and uncertainty however in regard to a number of other categories, some of which I have alluded to in this article.

Dr. Bernard Andonian

Head of Professional Development