Last Thursday's momentous vote is clearly going to have widespread economic and political implications for the UK and beyond. It has also led to concern among some of the nearly 2.2 million European Economic Area (EEA) nationals who are currently resident in the UK about their continuing and future ability to live, work and study in the UK.
As a number of commentators have already said, it is important not to panic. Although Article 50 of the Treaty of Lisbon gives a two year deadline for countries to leave the European Union (EU), this deadline is only activated once a country gives notice of its intention to leave. The UK is already coming under pressure to do this as soon as possible but, since a country has never left the EU before, there is likely to be a considerable amount of negotiation before the starting gun is fired on the formal withdrawal process. It is important to note that EEA nationals will be able to continue to exercise their right of free movement and come to live, work and study in the UK up to the point that the UK leaves the EU.
Another important consideration is that nearly 2 million British citizens live abroad in other EEA countries, mostly in Spain, France and Ireland. It is therefore unlikely that any negotiated exit would result in EEA nationals who are already in the UK being required to leave as this would likely result in any British citizen currently living in an EEA country potentially being required to return to the UK.
However, there are steps that EEA nationals who are currently in the UK and are concerned about their status can take to consolidate their position in the UK:
1. Apply for a Registration Certificate
Although it is not currently a requirement for an EEA national who is in the UK to hold a Registration Certificate, some do apply for one as it evidences the fact that they are currently exercising an EU Treaty right in the UK, such as employment, self-employment, self-sufficiency or study.
2. Apply for a document certifying permanent residence
EEA nationals who have been exercising an EU Treaty right in the UK for at least the last 5 years may have a right of permanent residence in the UK. In order to satisfy the permanent residence requirements, the EEA national must have resided in the UK for a continuous period of five years. This means that the individual must not have been absent from the UK for more than six months in any given 12 month period. In addition, the EEA national must provide evidence that they have been exercising an EU Treaty right throughout this period. For example, if the EEA national has been in employment, they should provide a letter from their employer(s) confirming their period(s) of employment, their payslips and bank statements covering the relevant period and / or their P60 End of Year Certificates. For periods of self-employment, they must demonstrate that they have been registered as self-employed with HMRC and provide evidence that they have paid UK tax as a self-employed person for the relevant period(s). If the EEA national has been studying, they must provide a letter from their school / college / university confirming their dates of study together with evidence that they possessed comprehensive sickness insurance for the relevant period(s). Those who are in the UK on the basis of self-sufficiency must also provide evidence of their finances and comprehensive sickness insurance for the relevant period(s).
3. Apply for British nationality
Since November 2015, in order for an EEA national to apply for British nationality, they must be able to demonstrate that they have been living in the UK for at least five years, they hold a document certifying permanent residence and that they have held the right to permanent residence for at least 12 months. It is important to note that the residence requirements for British nationality are stricter than those for permanent residence. In order to satisfy the residence requirements for British nationality, the EEA national must not have been outside the UK for more than a total of 450 days in the last 5 years and 90 days in the 12 months before they submit their British nationality application. Applications may still be approved if an individual exceeds these limits, provided they can show that the excess absences were due to some extenuating factor, such as a job which requires extensive international travel, and it is clear that the EEA national has established their home in the UK.
If an EEA national has not been in the UK for long enough to apply for a document certifying permanent residence, or does not currently satisfy the continuous residence requirements, there are certain steps that they may take in order to ensure that they satisfy the relevant requirements at the earliest opportunity. They should ensure that they limit their overseas travel so that they do not exceed the 6 months in any given 12 month residence requirement. In addition, if they are currently self-sufficient or studying in the UK, they should ensure that they have comprehensive sickness insurance.
We have seen a number of examples recently of EEA nationals who were unaware that they are also British citizens. EEA nationals who were born in the UK may be British by birth depending on the date of their birth and the status of their parents at the time of their birth. Consequently, any EEA nationals who were born in the UK may wish to seek advice from an immigration lawyer to see whether they already possess British nationality.
Even in the run up to the EU Referendum vote, there was an increase in the number of EEA nationals applying for permanent residence and British citizenship and our experience is that these applications are being heavily scrutinised by the UK immigration authorities. It is therefore important that any EEA national looking to submit such an application consults a UK immigration lawyer.
It is, of course, difficult to predict the UK immigration law changes that will be implemented once the UK leaves the EU. There will still be a need for wealthy and skilled migrants to safeguard the continuing growth of the UK economy. In addition, in order to maintain its "open for business" stance, the UK will have to continue to allow international businesses to transfer skilled staff from their overseas offices and local UK companies to hire overseas workers to fill roles which require skills which are not present in the resident labour market.
It is difficult to imagine that some form of limited free movement or special arrangement that will allow EU citizens to come and work in the UK, and vice versa, will not form part of any future trade deal negotiated with the EU. There is already precedent for this as the agreement that Switzerland signed with the EU means that, although they generally do enjoy the majority of free movement rights, there are some situations where EU nationals must obtain a work permit to work in Switzerland.