An interesting article from Tsige Berhanu at Keystone Law outlining the implications of Brexit and the free movement of people within the EEA. Yes, its a political hot potato for Teresa May, but potentially our greatest bargaining chip in the ensuing debate on Great Britain’s access to the Single Market.

Signpost with Brexit sign pointing one way, EU sign pointing in the opposite direction

Do you know how many of your employees would be affected by the potential changes to the Free Movement of People? If so, what steps are you taking to secure their status? As Article 50 is triggered, immigration lawyer Tsige Berhanu examines the options available for EEA nationals in the UK.

Unsurprisingly, since the Referendum, there has been a significant upsurge in applications for permanent residence cards which has resulted in processing times increasing from just a few weeks to several months.

Set out below is an analysis of the key immigration options, to ensure that those affected will be as ready as possible for the likely changes to occur upon the UK’s exit from the EU.

Permanent Residence Card
EEA nationals qualify for permanent residence if they have resided in the UK for at least 5 years as a ‘qualified person’ (i.e. as a worker, student, self-employed or self-sufficient person).

EEA nationals automatically acquire this status if they meet these requirements, and historically many have felt it unnecessary to apply for a permanent residence card evidencing that status. There are in fact good reasons to apply for the card which have become stronger following the Referendum.
Firstly, the permanent residence card is a convenient way of evidencing permanent residence and this, for obvious reasons, may be preferable now to simply relying on an EEA passport.

Moreover, it is important not to underestimate the evidential difficulties involved in establishing a 5-year qualifying period if that period significantly predates the application. For example, payslips and other evidence required to show a continuous 5-year period of being qualified may be mislaid or lost. The Home Office requires that evidence is produced showing that a person has worked or has otherwise remained a qualified person for a continuous period of 5 years. The longer the application is left, the more likely that gaps in the evidence will arise.

Secondly and importantly, further to changes introduced in November 2015, an EEA national will need to have actually been issued with a permanent residence card before being able to apply for British citizenship.

It is further worth noting that although currently the application form provided by the Home Office for the permanent residence card is not mandatory, this may yet change. There are also further important changes expected in respect of the right to challenge refusals.
Naturalisation as a British Citizen

As mentioned above, this option is available to those who have already been issued with a permanent residence card. In addition, applicants will need to meet the same requirements as apply to non-EEA nationals, such as being free from immigration control for at least 12 months, passing the “Life in the UK” test, being of good character, and paying a rather substantial application processing fee. Obviously, this option is not for everybody as it may have wider implications, including possible effects on existing nationality.

Once again there has been a significant increase in the number of naturalisation applications since the Referendum, resulting in longer processing times.

Registration Certificate
What if EEA nationals have not accumulated 5 years of residence or if their residence period has been broken due to lengthy periods spent abroad? In these instances, and again for the purpose of having a document that would easily show their status in the UK, EEA nationals have the option of applying for a registration certificate.

As with the permanent residence card, historically few EEA nationals applied for a registration certificate, as the extended residence rights arising from being a qualified person are automatically conferred. However, this may now be an option worth considering in light of the uncertainty surrounding the future of free movement of people within the EU area. As being widely discussed in the media, if indeed a work visa of some sort is introduced, having a ready document to demonstrate existing-worker or other qualified status may be helpful.

In summary, EEA nationals, in order to be as prepared as possible to meet the uncertainties of the future, may do well to consider:
– applying for a permanent residence card as soon as eligible;
– applying for British citizenship if eligible and desired;
– applying for a registration certificate where the requirements for a permanent residence card have not yet been met