Brexit and immigration rights and documentation of EEA nationals

Following Theresa May formally notifying the European Council on 29 March 2017 of the UK's intention to withdraw from the European Union, individuals and employers can take steps to mitigate the uncertainty relating to the UK’s withdrawal. This article summarises the rights of EEA nationals and their family members and the documentation they can obtain to evidence these rights. It looks at residence requirements and points to consider when applying for citizenship.

More general effects of Brexit in the immigration context are also briefly reviewed.

Rights of EEA nationals and their family members

The latest consolidated Immigration (European Economic Area) Regulations 2016 (“the Regulations”) set out the rights of EEA nationals in the UK. This is a different framework than the Immigration Rules, which apply to third-country nationals who are subject to immigration control in the UK.

Under the Regulations, EEA nationals have the right to enter the UK and have an initial right of residence in the UK for up to three months. In order to qualify for a right of residence beyond the initial three months (i.e. be a “qualified person”), an EEA national must be exercising treaty rights as a jobseeker, worker, self-employed person, self-sufficient person or student.

Third-country national family members of EEA nationals can travel to the UK with an EEA family member or join an EEA family member already in the UK. Under the Regulations, the following people are considered family members: spouse, civil partner, children and grandchildren of the EEA national or of their spouse or civil partner who are under 21 or are dependants, and dependent parents and grandparents of the EEA national or of their spouse.

The Regulations also provide for unmarried partners and relatives who are established members of an EEA national’s household to be treated as family members; they are deemed “extended family members”. Unmarried partners are those with whom the EEA national has been living with in a durable relationship for at least two years.

After five years of exercising treaty rights in the UK, an EEA national and their family members acquire permanent rights of residence. Continuity of residence requirements apply to family members of EEA nationals as well as to EEA nationals. (Please see below for information on how absences from the UK affect continuity of residence.)

Documentation of EEA rights

Most rights under EEA law are not dependent on the individual or their family members making a successful application for documentation. However, the following third-country national family members are required to obtain residence cards:

• An extended family member must apply for a residence card before expiry of a family permit, and for a permanent residence card before expiry of their residence card, or they will be considered an overstayer.
• Family members of an EEA national student, other than their spouse and dependent children, must apply for residence cards within three months of the student’s admission to the UK

Also, EEA nationals and their adult family members are required to obtain permanent residence cards before applying for citizenship.

Obtaining documentation of EEA rights facilitates travel and employment, so we have always recommended that EEA nationals and their family members apply for documentation. In light of the UK’s scheduled exit from the EU on 29 March 2019, we also recommend that they apply for documentation of EEA rights to optimise their chances of maintaining those rights. The issue of the maintenance of rights of EEA nationals and their family members will be determined by negotiations.

The main types of EEA documentation applications are as follows:

• Family permits – Third-country national family members of EEA nationals should obtain family permits before entering the UK. Family permits document the right to travel to the UK and the initial right of residence. They expire after six months.
• Registration certificates – EEA nationals, including EEA national family members of “qualified persons’”, can apply for these to document an extended right of residence in the UK.
• Residence cards – EEA nationals’ third-country national family members can apply for these to document an extended right of residence in the UK.
• Permanent residence cards – After exercising treaty rights in the UK for five years, EEA nationals and their family members may apply for documentation of their right to reside, work, study etc in the UK indefinitely. The Home Office requires an EEA national to obtain a permanent residence document before they make a citizenship application or their family members make an immigration application based on their relationship.

Absences from the UK

Periods of absence of up to six months in total in any year do not break the continuity of residence for purposes of acquiring permanent residence. “Any year” in this context means any 12-month period counting back from the date of acquisition of permanent residence. This means that an applicant can have been absent for up to six months at a time, for any reason.

One absence of up to 12 months in the five-year period does not affect continuity of residence for purposes of acquiring permanent residence, if it is for an important reason such as pregnancy and childbirth, serious illness, study or vocational training, or an overseas posting.

Note that the continuity of residence requirements apply to family members.

Citizenship

Applicants who wish to apply for citizenship immediately following the issuing of their permanent residence card should support their permanent residence card application with evidence of exercising treaty rights for a five-year period ending at least one year before the date they wish to apply for citizenship. This is because applicants must have permanent residence for one year before applying for citizenship. Permanent residence applications can be backdated to evidence exercising treaty rights for a historical five-year period.

Where EEA nationals have dependent EEA or non-EEA national family members, the EEA nationals should wait for their dependent family members to get permanent residence, before applying for British citizenship.

Once the EEA national becomes British, they and their family members do not benefit from EEA rights.

Note that the residence requirements for citizenship are more stringent than those for permanent residence.

Other points to consider when applying for citizenship include tax and whether dual citizenship is permitted by the country or countries of which the applicant is already a citizen.

General effects of Brexit

Freedom of movement between the UK and the EEA will end when the UK withdraws from the EU.  EEA nationals will need authorisation to enter, live and work in the UK.  The authorisation could be in the form of a visa issued by the UK Government, but it is also possible that the Government will allow employers to issue such authorisation directly in certain circumstances. 

Future UK immigration routes will have to accommodate both skilled and unskilled workers to ensure that industries that rely most heavily on migrant workers, such as finance, manufacturing, retail and hospitality and transport, will be able to access the labour they need.

The UK and the EU will formulate a trade agreement, as part of withdrawal negotiations, that is likely to include terms on movement of people.  The UK will negotiate separate trade agreements with other countries such as the US, China and India.  Again, movement of people issues are likely to be included in those trade agreements.

We recommend that employers check that their Prevention of Illegal Working processes and documentation are up-to-date to ensure a good relationship with the Home Office in the coming months and years.  The Government is likely to seek employers’ views on immigration during the withdrawal process and we would also encourage businesses to engage in the process of developing new immigration policies by sharing their views.