Brexit | UK leaving the EU | Legal Advice for EU nationals           

Brexit: Consequences of the United Kingdom leaving the EU

EU nationals and their family members are understandably concerned about their future rights to live and work in the United Kingdom.

The process of leaving the EU, which will take a minimum of 2 years, started in March 2017 following the triggering of Article 50. This means that the UK could leave the EU by the summer of 2019, although it is likely to take longer than this. In the meantime the UK remains a member of the EU and the existing laws on free movement remain unchanged.

Whilst there will be much uncertainty over the coming months it is generally agreed that measures will probably be introduced to protect the rights of EU nationals and their family members who are currently exercising Treaty Rights in the UK, such as by living and working here, but there is still a degree of uncertainty during the Brexit negotiations.

What should EU nationals and their family members do now?

This will depend upon individual circumstances.

EU nationals can apply for Registration Certificates as proof that they are exercising Treaty Rights, and non-EU recognised family members can apply for Residence Cards. These documents will be helpful because they will prove that the holders had the right of residence in the UK before the date of leaving the EU. Applications should be made on the appropriate form: EEA(FM), or EEA(QP), or EEA(EFM). Applications for Permanent Residence documents can be made online if the eligibility criteria are met (this is much quicker than completing a paper-based application form).

EU nationals, and their family members, who have completed 5 years continuous residence in accordance with European law automatically acquire Permanent Residence (PR). Such persons can, and should, apply to the Home Office for confirmation of PR on application form EEA(PR). Please scroll-down to see our 'Permanent Residence: Frequently Asked Questions'.

The Home Office will be receiving very large volumes of applications from EU nationals and it is quite likely that applications may not be decided for up to six months. EU nationals (and their family members) can retain possession of their original passports if they apply for Permanent Residence documentation online through the European Passport Return Service, but this will not speed-up the decision-making process. There are only very limited circumstances in which decisions will be expedited (e.g. for compassionate or business reasons). The Home Office has scrapped its previous policy of making decisions within 6 months, although the vast majority of applications are still decided within this period. 

EU nationals who wish to apply to naturalise as a British citizen and who are relying on EU rights of Free Movement to satisfy the residence requirements must hold a Permanent Residence Document before they can apply.

In summary

EU nationals who were exercising Treaty Rights in the UK before Article 50 was trigerred (and possibly afterwards, depending upon forthcoming negotiations) are unlikely to experience any problems as a result of Brexit but nothing is certain at the present time. It is advisable for such persons to apply for the residence documentation referred to above before the UK leaves the EU.

Need help?

We can assist by way of one-off consultations, or our application checking service, or we can provide full preparation of the application and legal representation if required.

Permanent Residence: Frequently Asked Questions:-

How do I qualify for Permanent Residence (PR)?

Permanent Residence is acquired automatically after living in the United Kingdom for a continuous period of 5 years whilst exercising Treaty Rights here as a Qualified Person. This is most commonly achieved through employment/ self-employment, but it can also include study and being a ‘self-sufficient person’. Recognised family members of the Qualified Person can also qualify for Permanent Residence. In certain circumstances PR can be acquired in less than 5 years.

How do I prove that I have acquired Permanent Residence?

By applying to the Home Office for a Document Certifying Permanent Residence (EEA national) or a Permanent Residence Card (non-EEA national). Please see above for links to the application forms.

I have held my ‘5-Year Blue Card’ for 5 years – does this mean I now have PR?

Not necessarily. The 5-year Blue Card (Residence Card/ Registration Certificate) only proves that, at the time of issue, the Home Office was satisfied that the holder had the right of residence in the United Kingdom under the EEA Regulations.

Should I apply for a Document Certifying Permanent Residence?

In our opinion – yes, because it will be helpful to prove your immigration status (especially after the UK has left the EU).

Is it mandatory to use the Home Office application forms?

Yes, following the implementation of Regulation 21 of the new Immigration (European Economic Area) Regulations 2016 on 01 February 2017. The online application forms are much easier to complete than the paper-based forms.

How long will my Permanent Residence application take to be decided?

It is not possible to answer this question. From our recent experience applications from EEA nationals have been taking an average of 3 months to be decided, but for non-EEA family members up to 6 months is possible.

There are gaps in my employment history – will this be a problem?

This should not be a problem provided that, during any periods of inactivity, you can show that you were actively seeking employment and that you stood a realistic prospect of securing employment. If you were unemployed for more than 6 months then we recommend that you seek legal advice before applying.

I have only been working part-time – is this OK? 

The EEA Regulations do not specify the minimum number of hours that must be worked for a person to be regarded as a worker. However, it is generally agreed that working less than 16-20 hours per week may not be sufficient (depending on the individual circumstances).

I have spent periods outside of the UK – is this a problem?

This will depend on the length of the absences, and the reasons for the absences. Absences of up to 6 months per year will not normally break continuity of residence. In response to a Freedom of Information Request the Home Office stated: “…we would look back at each year of the qualifying period and consider each year in turn as to whether absences in that particular year exceeded 6 months. For example, if the qualifying period runs from 1st Jan 2005 to 1st Jan 2010, we would look at whether each year from 1st January had more than 6 months absence".

Remember that continuity of residence and the exercise of Treaty Rights are two separate and distinct matters. If you are in any doubt then you should seek advice before applying.

Can I exercise Treaty Rights in different ways and still qualify for PR?

Yes you can. For example, you can combine periods spent as a worker and periods spent as a student.

Do I need to pass an English Test or the Life in the UK Test?

Neither of these are required for Permanent Residence, but you must satisfy these requirements before applying to naturalise as a British citizen.

What should I do if my Permanent Residence application is refused?

Refusal attracts a right of appeal. Alternatively, if the reason(s) for refusal can be overcome then a fresh application can be submitted.

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