The Obstacles Around Guaranteeing EU Nationals’ Rights After Brexit

Tomorrow will mark one of the most significant dates in British history since the Second World War. Theresa May is poised to officially trigger Article 50, with the letter being hand-delivered to EU President, Donald Tusk by Sir Tim Barrow.

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An article in today’s Financial Times highlights the enormity of the problem faced by Immigration lawyers and EU negotiators whose objective is to secure the best deal for EU nationals residing in the UK and British nationals currently living in the EU.

The article’s author, Alex Buckle, eloquently states the dilemma in a nutshell: “Both London and the EU-27 agree on a broad goal: a reciprocal deal to guarantee the rights of three million EU citizens in Britain, and about 1m British expats within the union. But within the detail of that superficial agreement lies an expat lifetime’s worth of politically sensitive choices.”

Mr. Buckle identified several major obstacles facing the government when it comes to managing EU nationals’ rights after Brexit.

There is no definitive list of how many EU nationals are currently residing in the UK

No register of when individual EU Nationals entered the UK exists, and it is highly unlikely such a list can ever be created. The fact the Permanent Resident Card document is 85-pages long provides some idea of the complexity involved in collating information about individual EU residents.

Every EU migrant is different

EU nationals are residing in the UK under different circumstances. Some are exercising their Treaty rights as students, others are self-employed and many are job-seekers. There are numerous questions to be answered such as future entitlement to UK pensions, healthcare and in & out of work benefits. Much of these factors may be settled with the issuing of permanent residence Cards and British Citizenship, but this process may take many years to complete, especially given the high rejection rate of applications (currently up to 28%).

Managing changing circumstances

New Immigration rules may be required to manage the changing circumstances of EU nationals residing in the UK. If they marry, will their spouse and children be granted residency rights? Can they bring adult dependent relatives over to live in the UK? Currently, there are Immigration rules in place for non-EU nationals regarding these issues, the question is - will the same principles simply be transferred to EU nationals living in Britain?

Multiple deals may be required

The government not only has to develop a policy on the rights of EU nationals currently residing in the UK, it must also look at how it manages the treatment of those who come to the country within the 24 month ‘divorce period’. There are suggestions that there will be an announcement to the effect that any EU migrants entering the UK after tomorrow’s Article 50 trigger will not be permitted to stay long-term. Would such a move violate the principle of free movement, of which the UK, being a member of the EU until the end of the two-year period? Possibly, but we are entering territory for which there is no charter.

How long will Brexit rights last?

As Mr Buckle stated, no rights can be open-ended. The government is likely to want to draw a line in the sand regarding EU free movement rights, but there will be many issues surrounding when such a cut-off date could be fairly applied. For example, would an EU national surrender their permanent resident rights in the UK if they relocated to another country? Or should those rights be guaranteed for life?

In summary

Tomorrow’s historic announcement will mark the beginning of a long and uncharted road, not just for EU nationals, but British citizens and businesses. No doubt there will be much debate and wrangling over the next few years, with Immigration solicitors and pressure groups pushing to get the best deal possible for EU nationals who regard the UK as their home.

OTS Solicitors is one of the most respected Immigration law firms in London. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. We can assist you in applying for a permanent residence Card and British Citizenship and answer any question you may have on your rights to remain in the UK following Brexit.

If you wish to discuss any of the points raised in this blog, please phone our London office on `0203 959 9123.