I am an EU national living in the UK; how secure am I and my family in view of the possibility of “No Deal”?

Given current political uncertainty EU nationals who are currently living in the UK (“Resident EU Nationals”) and their family members (including non EU family) cannot be given any guarantee that they will be able to remain in the UK. Some might be able to protect their position by obtaining a status that is based on British law. The rest are at some risk of becoming political footballs to the extent that the relationship between the UK and the EU deteriorates.

In this article EU Nationals refers to nationals of member states except those of the Republic of Ireland (who have favourable rules that won’t be affected by Brexit) and those of the UK.  Nationals of Norway, Liechtenstein, Iceland and Switzerland can expect to receive very similar treatment to EU Nationals though this is subject to separate negotiations.

Deal

If there is a “deal” Resident EU nationals will be automatically allowed to remain in the UK with their current rights to work/ receive benefits/education/health until at least 31 December 2020. They will be able to remain longer by applying for Settled Status (aka. Indefinite Leave to Remain) or Pre-Settled Status. Settled Status will be given to those who have 5 years residence at the date of applying and Pre-Settled Status to those with shorter residence. This scheme is called the EU Settlement Scheme. The scheme is potentially very beneficial for Resident EU nationals who don’t satisfy current free movement rules (for example, because they are not working and are not covered by health insurance). This is because the scheme relaxes these requirements, at least, for the majority of applicants.

No Deal

If there is a “no deal” Brexit then on 29 March 2019 the UK will be able in principle to remove the rights of all EU nationals to remain in the UK at any point thereafter, save where any EU national has established a UK based status that conveys an independent right to remain.

Whilst the UK would be free to do this, there are many reasons why it would not. For example: the importance of EU workers to the economy, the need for good relations with EU member states and the risk of UK residents in mainland Europe being required to return to the UK by different member states (each of whom would make their own decision as to how to treat their UK residents). The current government have said as much by advising that the EU Settlement Scheme will be implemented even if there is a no deal Brexit. Nevertheless this assurance has to be treated with some caution because of the high degree of political volatility that would arise in the event of a no-deal Brexit.

The catastrophic scenario of mutual expulsions between the UK and EU member states is not likely, but cannot be completely ruled out as a possibility. In the unlikely event it did arise it would not take place overnight. There would probably be a status quo period when the current EU rules continue to operate in the UK whilst the UK and different EU member states decide what to do to each other’s citizens.

No Brexit at all

If there is no Brexit then EU nationals will continue to benefit from free movement laws. However, free movement does not give complete freedom to EU nationals to live in the UK. As per the example given above, an EU national who is not employed and not covered by health insurance is not complying with free movement law and risks being removed under current law. One possible reaction to a no-Brexit would be for the government to take more steps to ensure compliance with free movement rules than they did prior to the referendum. It is likely therefore to become more important for EU nationals to obtain proof of their rights. This will be particularly important for those who have long residence in the UK, as has been shown by the Windrush scandal.

OPTIONS

It is not too late for EU nationals to protect themselves by obtaining a UK based status, if they qualify. The key strategies are summarised below. Please note that not all qualifying conditions have been mentioned and proper advice should be taken on each person’s personal circumstances.

  • Become British – relevant to those who have at least 6 years qualifying residence and/or a 5 year period and are married to UK nationals

Resident EU nationals can “naturalise” as a British citizen if they hold a card or certificate confirming that they have an EU status called Permanent Residence. This status is obtained automatically by a Resident EU National after 5 years lawful residence in the UK (and sooner in some exceptional circumstances) but the certificate is only issued once it has been applied for (family members who are not EU nationals apply for a card, instead of a certificate – though applications can be combined). Lawful residence broadly means: working or being self-employed, or being self-sufficient or studying (but in the last two cases the Resident EU national must have held comprehensive health insurance). In many cases the status must have been held for at least 1 year before it is possible to qualify for British Citizenship. However, often the individual will have automatically obtained permanent residence status some years ago. In those cases they can immediately apply for UK citizenship as soon as they have their permanent residence certificate, assuming the other normal conditions for naturalisation are satisfied (e.g. numbers of absences/ good character/ intention to live in UK). In addition, if the Resident EU National has a British spouse then there is no waiting period in any event. The Life in the UK test and a language test will be needed in most cases.

  • Apply for Indefinite Leave to Remain under the “Long Residence” category – relevant to those who have had at least 10 years qualifying residence

Resident EU nationals who have lived lawfully in the UK for any continuous 10 year period can apply for a UK status called “Indefinite Leave to Remain” under the part of the immigration rules known as “Long Residence”. This status will not be affected by Brexit. It is less valuable in some ways than British Citizenship, because, for example, it is lost if the holder subsequently leaves the UK for over 2 years. However, it is a good insurance against Brexit. It may take several months for the decision to be made but the applicant cannot be required to leave the UK whilst the application is outstanding. It is necessary in most cases to take the Life in the UK test and possibly a language test depending on the person’s mother tongue. However the biggest hurdle will be to find sufficient evidence to prove that throughout the 10 years’ the EU national has been lawfully resident at all times (e.g. by working).

  • Obtain confirmation of Indefinite Leave to Remain – relevant to those who have lived in the UK for 30 years or more

Resident EU nationals who were living in the UK when the UK entered the EU on 1 January 1973 in many cases will have automatically qualified for “Indefinite Leave to Remain”. If they have not left the UK for more than 2 years since that time then they will still have this status. This right is a right under UK law that will not be affected by Brexit. They can make an application to the Windrush Taskforce who will be able to confirm the status.

Resident EU nationals or their family members who arrived in the UK after 1 January 1973 might have applied for, and been granted, a status called “Indefinite Leave to Remain” by the Home Office. The Windrush Taskforce will check the status of anyone entering the UK before 31 December 1988. For those who arrived later, they have the option of applying for a No Time Limit Biometric Residence Card to confirm their status. They will have to show that they have not left the UK for more than 2 years since they were given ILR.

If it is confirmed that a person has Indefinite Leave to Remain then they might then choose to apply for UK citizenship.

  • Obtain confirmation of UK citizenship – relevant to those who were born in the UK

Because EU passports allow free travel to the UK some Resident EU Nationals have never checked to see if they are British.

Before 1 January 1983

Any Resident EU Nationals who were born in the UK before 1 January 1983 will automatically be British, even if they have held another nationality. If they were British from birth any children they have subsequently had will also have been born British.

From 1 January 1983

A child of a Resident EU National born after 1 January 1983 will only have been born British if at least one of their parents was either British, had “Indefinite Leave to Remain” or (from 30 April 2006) Permanent Residence. Permanent residence is obtained automatically after 5 years of lawful residence in the UK by the parent. Therefore some parents will not have realised that they had permanent resident status at the time of their child’s birth nor that their child is British. The child’s status can be confirmed by applying for a passport and including evidence to show that one of the parents had the right of permanent residence at the time of birth.

Assessing what to do

Assuming you are an EU national, is it worth taking action and incurring application fees/ legal costs?

The risk of Brexit ultimately harming you and your family is probably higher in the following circumstances where your status under existing law is itself likely to be uncertain:

  • You are not currently complying with free movement law (e.g. you are not working, and are not self-employed and have no private health-insurance or equivalent) or your work status in the UK is not certain (e.g. risk of redundancy or risk of being redeployed overseas)
  • Your family members are not themselves EU Nationals
  • Your family circumstances are not stable or are complicated – e.g. because you have separated from your partner or because your family relationships include ties of dependency (e.g. elderly parents who are dependent on you)
  • Your earnings vary significantly – e.g. because of self-employment or working part-time or on temporary contracts
  • You have a criminal record (not necessarily a serious one)
  • You have had lots of absences from the UK and/ or are working overseas at the moment

Free movement law is complicated and special protections apply in certain situations (e.g. after divorce or after retirement etc). It is essential to take advice if you are not clear how you or your family qualify.

For those who are relatively secure under current law – e.g. a person who is working or even a person who has permanent residence rights having worked consistently for 5 years – then the Brexit risk cannot be called high. However, the level of risk itself is uncertain. There are too many factors in play to give a prognosis. Therefore if your personal circumstances mean that you cannot tolerate any degree of risk around your right to live in the UK then you should take advice on the options given above.

Duncan Bain

Bower Bailey LLP

N.B. Please note that the views expressed in this article are those of the author and are not necessarily those of Bower Bailey LLP