Brexit vs EU nationals in the UK

Brexit or more easily understood as the British Exit from the European Union, has been a major media topic causing controversy for the past few years.

Following the General Election in 2015, David Cameron, the re-elected Prime Minister, has promised to hold a referendum to decide on the United Kingdom’s membership of the European Union. “Brexit” suddenly made it to the front pages of all major global media outlets making it almost impossible to ignore.

The referendum must take place before the end of December 2017 and it is currently planned to take place on Thursday, 23 June 2016.

British, Irish and Commonwealth citizens over 18 who are resident in the UK, along with UK nationals living abroad who have been on the electoral register in the UK in the past 15 years will be eligible to vote on whether the UK should either “leave” or “remain” in the EU. Citizens from EU countries – apart from Ireland, Malta and Cyprus – are not eligible to vote.

Polls have been mixed but currently suggest that Brexit campaign is gaining ground with some showing it in the lead. Bookmakers’ odds, which the Financial Times indicates might be a more reliable measure than polls, give Brexit a 30% chance. Either way it seems a real possibility.

Although there is a lot of speculation in the media, the actual consequences of Brexit are practically impossible to predict. What is clear however is that it will surely have a major economic and political impact on the UK and will influence profoundly the UK’s role in Europe and rest of the world.

Free movement of goods, capital, labour, services and establishment underpin membership of the European Union and the single market. If the UK votes to leave the EU, it in theory it may lose all or some of these automatic benefits the EU membership. Leaving the EU for example could bring the UK back its right to border and immigration control. Being part of the EU, the UK virtually has no control or any barrier against EU citizens residing in the UK under the current regime.

The UK joined the EU back in 1973, and has remained a member since then. According to Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004, Article 6 and 7 gives nationals of EU member states (“EU nationals”) the right to move and reside freely within the territory of the EU and EEA member states subject to certain conditions if the citizen is to stay for more than three months.

Consequently, all EU nationals have the right to reside in the UK for three months. After that period, only a “qualified person” is entitled to reside in the United Kingdom for so long as he remains a qualified person. “Qualified person” includes a jobseeker, a worker, a self-employed person, a self-sufficient person or a student.

Family members of EU national with the right to reside in the UK also have the right to reside here. This includes family members who are not themselves EU nationals.

After five years of continuous residence in the UK EU nationals may qualify for permanent residence under European law.

Currently, there are just over 3 million people born in the EU living in the UK. Overall, only a fifth of the migrants who have come to the UK since 2004 are higher-skilled workers, with 38 per cent in skilled jobs and 62 per cent in low-skilled work, including 28 per cent in “elementary” positions such as labouring.

It is claimed among other things that a vote to leave the EU would allow UK ministers to introduce a more effective immigration regime, which would effectively bar low-skilled workers coming to Britain. This may be achieved by setting new requirements for qualifications and experience in order to obtain a visa, such as the one currently in operation for non-EU citizens.

So, should the UK citizens currently residing in EU and the EU citizens currently residing in the UK be concerned about Brexit? Most certainly! As the precise impact of a vote for Brexit is not at all certain. What is clear is that it could fundamentally change the UK’s relationship with the rest of the EU and the wider world and may also result in significant changes for those intending to live and do business in the UK.

However and it may be a relief to those EU citizens already living and working in the UK to find out that they would retain their existing rights. The same would apply to British citizens living and working in the EU. This arises from the Vienna Convention on the Law of Treaties, 1969. Generally speaking, withdrawing from a treaty releases the parties from any future obligation to each other, but does not affect any rights or obligations acquired under it before withdrawal.

In addition and in the event Brexit actually happens, it would not occur immediately. Article 50 of the Treaty on the European Union envisages a negotiation period leading to exit on a mutually agreed date – the default is two years. The only real precedent is Greenland which left the EU in 1985, almost exactly three years after their exit referendum.

Nonetheless, lawyers at Edmans & Co are advising EU citizens, who qualify for permanent residence having lived in the UK for a contentious period of 5 years, to apply for permanent residence to formally legalise their status in the UK for avoidance of any future doubt should UK vote to leave the EU.

If you require any advice or assistance, please feel free to contact our offices and speak to one of our immigration lawyers.

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