UK residence rights and the EU referendum

“Immigration” from Europe (otherwise known as free movement) was one of the main subjects of David Cameron’s recent negotiations with the EU.

In particular, the EU “Decision” reached last week seems to accept the Home Office position that people who benefit from EU free movement laws to be joined by family members in their host country are essentially evading national immigration laws.

Some sources believe that immigration will be the most important issue for voters in the referendum now set for 23 June.

All of this has naturally tended to make European residents of the UK anxious about their legal status after the referendum.

Unfortunately there is a lot we just don’t know about what might change about residence rights in the coming months.

What we know

We do know that the “Decision” includes agreements about how European member states intend to treat non-EEA family members of people exercising free movement rights.

We know that the Decision does not itself change the Treaty underlying the UK’s membership of the EU. Free movement rights ultimately come from the Treaty.

What we don’t know

We don’t know what the outcome of the referendum will be. The terms of the Decision will only apply if the UK votes to stay in Europe.

If the UK stays in Europe then the obvious intention of the Decision is to force people to meet national immigration laws when bringing family members to join them from outside the EU. However, we don’t know how this will stand up to legal scrutiny if there is no Treaty change.

If the UK leaves the European Union and the EEA, there will have to be further negotiations about future immigration requirements for nationals of other European states. The UK will also have to decide how to treat European nationals and their families already living in the UK. The terms of the Decision, and the negotiations leading up to it, give us some idea about how the current government wants to treat European people coming to the UK, but at the moment there is no agreed policy position on what would happen to immigration laws after a “leave” vote.

Is there any precedent for this?

Although it’s not an exact comparison, and still speculative, we can look at how the UK has treated other kinds of acquired residence rights in the past.

Although the trend is to reduce the rights people have to live in the UK (considering for example people from the UK’s former colonies), there are usually transitional provisions that allow people with rights acquired before a particular date to keep those rights. This is most likely to apply to people who have acquired a right of permanent residence, but could also allow people exercising treaty rights in the UK at a particular date to continue to rely on “old” EU residence rules.

We can also look at current domestic immigration laws for clues about how family members might be treated in the event of a “leave” vote. It’s interesting that in negotiating the Decision, the government focused on requiring family members to meet the domestic family migration rules under Appendix FM (including a language requirement and the infamous £18,600 financial requirement). However, a better model for a post-”leave” vote might be the Points-Based System for skilled workers. Although the visa grant for a main applicant depends on having a high-skilled job with a minimum salary requirement, there is no language requirement for family members and the visa assessment process is typically more streamlined than for a partner visa.

None of these scenarios is likely to be particularly comforting to people used to current free movement rights, however.

What can I do?

If you are a European national exercising treaty rights in the UK, it would be sensible to apply for confirmation of a right of permanent residence if you can do so. However, do take advice before naturalising as British, in case this affects the residence rights of any non-European family members.

Non-European family members should apply for residence cards or PR cards where possible: many more people now apply for these because of the requirement to produce “right to work” and “right to rent” documentation. However, there may be people without papers who have been in the UK for a number of years.

You can also check whether any children born in the UK are British citizens or can be registered as British.

If you need advice about applying for residence documentation, or about British citizenship for you and your family, please contact me.

 

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