This article was published prior to the publication of the post-Brexit agreement between the UK and EU which covers the relationship between the UK and EU following the end of the implementation period (commonly referred to as the “transition period”) created by the European Union (Withdrawal Agreement) Act 2020, and should be read in that context. For up-to-date commentary and information on our services, please see our Beyond Brexit page.
What does a vote to leave the EU in June's referendum 2016 mean for EU Nationals currently living in the UK? The short answer is we do not know.
The Future Following Brexit
A vote to "Brexit" could mean that some EU nationals would no longer have the right to remain in the UK unless they have a suitable visa. Similarly, British citizens who reside in other EU Member States could be forced to relinquish their right to free movement.
If Britain does vote to exit the EU, a period of lengthy negotiations over the terms of the exit between the UK and the remaining Member States will almost certainly take place. In the event of a vote to leave, EU nationals will most likely have to apply for a visa under the UK's Immigration Rules to remain in the UK.
What is not clear is whether interim rules and procedures will be applied during the period of negotiation, and if so, what those rules might be. We therefore cannot be sure what the rights and status of EU citizens residing in the UK at the point of Brexit, if it occurs, will be.
If Britain votes to leave the EU, the questions are endless: will EU nationals still have the right to apply for permanent residence or British citizenship based on their previous residence and right to free movement? If so, until what time will they maintain this right? How would an exit affect British Citizens living in another Member State?
A further concern for EU citizens residing in the UK is that there is no guarantee, if the UK were to leave the EU, that there will be a suitable visa category for them to make an application to remain in the UK. In particular, EU citizens working in lower skilled occupations may not be eligible for a UK visa based on the current categories of UK visas.
Certifying the Right to Residence or Obtaining Citizenship
It is impossible to predict the outcome of the referendum. If you are an EU citizen and hope to continue to live in the UK, regardless of the outcome of the vote, certifying your permanent residence status or applying for British Citizenship before the referendum is something to be seriously considered.
Currently EU nationals are deemed to automatically acquire permanent residence status after completing 5 lawful years in the UK. Permanent residence means there are no restrictions on your leave in the UK and you may exit and enter the UK as you wish. Permanent residence is the prerequisite to applying for British Citizenship.
Previously there was no requirement for EU nationals to apply for permanent residence as the status is obtained automatically if the criteria are met; it is not granted by the British authorities but by automatic operation of EU law. However, from 12 November 2015, the rules were tightened so that if a person with permanent residence wishes to apply for British citizenship they will have to first apply for a permanent residence certificate to confirm their permanent residence status.
How will Brexit change the current position? This is unknown but, until we do, EU nationals residing in the UK should consider taking pre-emptive steps to certify their permanent residence status or obtain British citizenship to protect their position.
For more information regarding applications for a Permanent Residence Certificate or British Citizenship, please contact Kirsty Cooke.