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EEA migrants post Brexit

By May 8, 2018 No Comments

In exactly 14 days from now the UK will hold a referendum on its membership of the European Union. The debate over the last week and a half has centered on immigration, and as this is the issue that polls the best for the out campaign I predict the rest of build-up will be focused on immigration, with the remain camp trying to wrestle the focus back on the economy.

The merits of each side’s argument is for each individual voter to determine – what I want to do in this article is explore the legal realities of what would happen to the 2.1 million EU nationals currently exercising their Treaty rights of free-movement in the UK. These are real individuals, many of whom have paid years’ worth of taxes to the UK, and all of us personally know many such individuals.

Firstly owing to what is known as the Luxembourg agreement, on a potential de-coupling those European nationals currently in the UK exercising their Treaty rights will continue to have a right to stay in the UK. Prominent leaders in the out campaign have made recent public statements that this would be honoured.

This begs the interesting question, and fellow immigration lawyers will be very familiar with this, under European free-movement law a migrant who is economically active in a host EU country need not obtain documentation from the host government confirming their immigration status, as the individual’s right to work and live in the host country stems from the European Treaties (roughly, but not completely, analogous to a Constitutional right). In the same way that I could take a job offer in Manchester without needing a visa from Manchester, a French national can take a job in the UK without needing authority from the UK government. On this basis a large portion of the above 2.1 million live in the UK without a Home Office Residence Card. On application the Home Office will issue official documentation, but it is not needed.

So should Brexit become a reality there will exist a practical difference between those who were in the UK prior to Brexit, and new entrants, whose residence in the UK would be regulated by whatever regime is put in place. To add an extra layer, on Brexit the UK government would invoke Article 35 of the EU Treaty (Lisbon amendment) which gives both parties 2 years to negotiate the break-up terms, during which the UK would remain a full member and therefore free-movement would operate in the same way as it does now during these 2 years.

Should Brexit happen there will be a much greater need, practically, and probably legally too depending on what the new regime would be, for current EU nationals in the UK to obtain a Home Office Residence Card. Individuals who move to the UK during the Article 35 negotiations would be well advised to apply for a Residence Card rather than simply relay on their undocumented exercise of free-movement.

So if you are a European national working hard in the UK but you have not applied for a Home Office Residence Card yet, you should seriously consider applying for one to give you added protection.

If you are interested in discussing these issues with Cassadys Solicitors please do contact us on 0203 772 5439 or using the contact us form on this website.

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