In recent years there has been an increase in EU nationals enquiring about becoming British despite the freedom of movement between EU states. The invariable reason for this seems to be a fear that Britain will leave the EU.

With the promise of a referendum on EU membership, renegotiation of the EU’s treaties and increasing hostility amongst mainstream political parties to immigration, it is not surprising that they have such fears. The interesting question is: are they justified?

RIGHTS UNDER EU LAW 

One of the EU’s four key “freedoms” is the free movement of people. This has its roots in the 1957 Treaty of Rome, which states: “Freedom of movement for workers shall be secured within the Community” (Art 48) and “restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be abolished” (Art 52). The then European Court of Justice gave this an expansive interpretation to move forward with the, “ever-closer union among the peoples of Europe”, promised under the Treaty of Rome.

The 1992 Maastricht Treaty added the concept of citizenship of the EU: “[e]very person holding the nationality of a Member State shall be a citizen of the Union” (Art 8) and “[e]very citizen of the Union shall have the right to move and reside freely within the territory of the Member States” (Art 8A). The biggest effect of this change on most Brits was the switch from (British) navy passports to (European) burgundy passports to take on European city-breaks.

The progression of free movement of people within the EU has been significantly wider. Directive 2004/38/EC codified the rights that stem from free movement of people and citizenship of the EU. For instance, under the Directive, EU nationals could travel to another member state safe in the knowledge that their children or spouse could stay with them, as long as they remain self-sufficient or economically active. Such rights even extend to non-EU national family members of EU nationals.

Anyone who has exercised such rights for five years gains a permanent right of residence, regardless of their economic situation thereafter. It is this provision that is particularly important to the concerned EU migrant – the default position, in the absence of family ties, is that someone can naturalise as British, if they have lived in the UK for five years and had permanent residence for the last of these.

SHIFT IN ATTITUDE 

The UK used to be a relatively enthusiastic supporter of EU freedom. For example, Britain was one of the only countries in the EU to allow immediate access to the UK labour market for citizens of the “EU-8 countries” that joined the Union in 2004.

However, opinion has since shifted.

Romanians and Bulgarians were restricted from working in the UK for the maximum time possible under EU law, while Croatians are currently subject to restrictions of the maximum length.

This is not enough for some. In December, the government hastily put in place changes designed to prevent EU migrants claiming UK unemployment benefits. And in January, Labour shadow business secretary Chuka Umunna suggested that free movement of labour in the EU should be limited to workers with firm job offers.

WHY THE NEED TO BECOME BRITISH?

The underlying rights for EU nationals to live in the UK remain, nevertheless. So, why the need to become British?

The answer does not lie in EU treaties because that is exactly the problem: no provision is made for what happens if a country leaves the EU. 

Let’s start with what we know:

  1. EU citizens can live in the UK because of rights under EU law.
  2. Britain (mostly) implements such EU law by passing domestic regulations.
  3. If Britain left the EU, the protection of EU law would fall away.
  4. But the domestic regulations would remain in place unless repealed.

The question, then, is really a political one: what would a British government decide to do with the four million or so EU migrants living in Britain if we were to leave the EU?

This sort of decision is not without precedent. Indeed, the impetus for modern British immigration and nationality law, has been the state’s need to differentiate between people who should be permitted to live in the UK and those who should not.

To oversimplify, the fall of the British Empire was the backdrop for the British Nationality Act 1948. At that time, the purpose was to work out what happened to the British nationality of former subjects living in newly independent states. Immigration from the Commonwealth then led to the Immigration Act 1971 and the British Nationality Act 1981, which had to set out who could live in the UK in the future and who could stay after having already arrived.

The courts have also offered protection. While citizenship is not a human right, Strasbourg has recognised that its denial can prevent someone enjoying their right to private and family life. These rights are frequently the basis on which non-nationals are permitted to stay in the UK. Similarly, the legitimate expectation of being able to continue to enjoy a right to live in the UK that was previously granted can provide protection.

Britain leaving the EU would lead to another round of politicians deciding what the human consequences should be.

The problem is that the politicians who advocate leaving the EU are the same ones who want to stop immigration and replace human rights with British rights.

With that in mind, it is not surprising that EU nationals living in the UK have fears over their ability to stay. Their best protection for now may well be to become British and, thereby, receive the protection of UK law.

This article by David Brannan, associate in Penningtons Manches' immigration team, was originally published here by Halsbury's Law Exchange.