Implications of Brexit for immigration

January 2, 2018

A year and a half after the UK voted to leave the EU there is still great uncertainty, particularly on immigration matters. This article seeks to outline what the current situation is and what the future may hold.

Current situation

Generally under EU law, European Economic Area (“EEA”) nationals and Swiss nationals have freedom of movement to enter, live and work in the UK (as long as they are a jobseeker, worker, self employed, self sufficient or a student). This right also extends to their non EEA family members. The right applies automatically and there is technically no need to obtain documentation evidencing it (except for non EEA national “extended” family members). However, it is often useful to apply for a registration certificate / residence card which confirms this right as this can assist in allowing the individual to re-enter the UK more easily, demonstrate to employers the right to live and work in the UK and prove that the individual qualifies for certain benefits and services.

Once the individual has lived in the UK exercising freedom of movement rights for 5 years it is then possible to apply for a permanent residence document (though again technically they are automatically entitled to the right without this document). This can be useful if the individual wants to apply for citizenship.

There are a number of ways in which one can be eligible to live and work in the UK but one of the main advantages to this route is in terms of cost. The Home Office fees for an application for a permanent residence document are £65. Compare this to the fees for indefinite leave to remain (this can be obtained in a number of ways such as when a non EEA citizen marries a UK citizen and meets the relevant residence/financial requirements) for which the Home Office fees are currently £2,297.

Another issue which is of particular relevance to Northern Ireland is that of dual nationality. The McCarthy case confirmed that UK citizens who also have an Irish passport are unable to apply for residence permits for non EEA spouses as they are not exercising free movement rights. Therefore in this case the more expensive UK spousal visa / indefinite leave to remain routes must be used. Compare this to the recent Lounes case in which it was held that a Spanish citizen who subsequently obtained British citizenship did not lose her rights to apply for permanent residence for her husband. The important distinguishing factor between these two cases is that, in the latter the applicant was judged to have exercised freedom of movement rights by moving to the UK and thus Article 21 of the Treaty on the Functioning of the European Union applied. The result of this is the somewhat counter intuitive fact that it is easier for the non EEA spouse of a Spanish citizen to live and work in the UK than that of a British citizen.

What will happen after Brexit?

Until Brexit takes place EU citizens continue to maintain freedom of movement rights. However, post-Brexit the short answer to the above question is that no one knows what will happen as these issues are currently being negotiated. To complicate matters further, as well as EEA citizens living in the UK, it is also necessary to consider the 1.2 million Britons living in Europe.

What has the Government said?

The Government has claimed that after Brexit it will create new rights for EU citizens who were resident before the exit. However, the current residency documents will no longer be valid and after Brexit takes place EU citizens will have to apply for their residence status. The Government has claimed that this process will be as smooth as possible and that eligible applicants will be given time to apply.

In terms of EU citizens arriving after Brexit, the Government has stated that they will be able to apply to be allowed to remain in the UK for at least a temporary period and then they may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status.

The Government has also stated that family dependants who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after five years (including where the five years falls after our exit), irrespective of the specified date. Those joining after our exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date.

Leaked Home Office papers

Draft papers which were leaked earlier this year are informative on the Government’s thinking about immigration after Brexit. The key points are that:

  1. An immigration bill will be produced before Brexit and set out the various phases of withdrawal allowing for a transitional “implementation period” which is expected to last two years;
  2. There will be a shift towards encouraging UK employers to “meet their labour needs from resident labour” through an “economic needs test”;
  3. EU citizens will no longer be able to use identity cards to enter UK;
  4. It has been suggested that, following the implementation period, only skilled workers will be able to receive a permit for more than three years;
  5. The classification of who counts as a family member of an EEA citizen will be tightened;
  6. A “reasonable, but specific” income threshold will be introduced for EEA citizens who wish to come to the UK as a “self sufficient person”;
  7. A reduction in the opportunity for workers to settle long-term in the UK and to bring their dependants, “especially at lower skill levels”; and
  8. The introduction of an ESTA style electronic travel authorisation for certain non EU travellers wishing to enter the UK.

Comment

It will be necessary to keep a close eye on developments in the coming months. These issues are of particular relevance to Northern Ireland given the land border with the Republic of Ireland. EEA nationals, their family members and their employers should consider what impacts Brexit may have on their status. In many cases it may be advisable to start the process of applying for registration certificates, residence cards, permanent residence documents or naturalisation now as we cannot be certain what the situation will be after Brexit occurs.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Immigration law is a complex matter with many nuances which are impossible to mention in a short article. Please contact our Employment and Business Immigration Team at Cleaver Fulton Rankin for further advice or information.