In a referendum held on 23 June 2016, a narrow majority of British voters were in favour of the United Kingdom leaving the European Union (EU). As a result, on 29 March 2017 the UK Government began the process of formally withdrawing from the EU by triggering Article 50. The actual date of exit is as yet unknown, but is likely to be two years after that, i.e. on 29 March 2019. 'BREXIT' is a shortening of "BRitish EXIT from the EU".
The Government published a policy paper on 26 June 2017 covering options for EU nationals who want to live and work in the UK after Brexit. Although we now have some idea of what the Government plans to introduce over the next four years, many details remain unclear while bargaining with Brussels continues.
Until the UK formally leaves the EU there is no change to the fundamental EU right to free movement: EU law continues to apply, and the rights of EU nationals remain unchanged. This exit date is still unknown, although is most likely to be 29 March 2019.
After Brexit, free movement will end, and all EU nationals will need to apply for a visa under new UK legislation. We call these new visas 'BREXIT VISAS'. This will apply both to those who are already in the UK and wish to continue living there - currently around 3 million individuals - along with those EU nationals who wish to move to the UK.
After Brexit, all EU nationals will need a Brexit Visa, even those EU nationals already living in the UK, and even those EU nationals who already hold UK Permanent Residence.
At this stage, we do not know what the requirements will be in order to qualify for these visas. The Government advises that the new legislation will be announced at some point before 29 March 2019. The reason for the delay is because the Government is still bargaining for reciprocal arrangements for UK citizens who live, or wish to live, in EU countries.
However, we can take a guess at the outcome of these diplomatic talks. We present three scenarios: Best Case, Worse Case, and Most Likely:
Best Case Scenario: EU nationals are granted a 5 year visa purely on the basis of nationality which would give them the right to live, work, seek employment, study or set up in self employment in the UK. Indefinite Leave to Remain would be granted after 5 years, and British Citizenship after 6 years.
Worse Case Scenario: EU nationals are granted a short term visa only if there is a specific reason to live in the UK, in just the same way as non EU nationals. These reasons could include marriage to a UK national; studying within the UK; or having a job offer for a skilled role such as a Doctor, IT consultant or Teacher. Visas would need to be renewed every 2 or 3 years and holders would not necessarily be able to apply for Indefinite Leave to Remain at any point.
Most Likely Scenario: Some EU nationals are granted a short term visa if they can prove their value to UK society. This would be assessed according to a Point Based System similar to that currently used in Australia, and previously used in the UK for non EU nationals (e.g. Tier 1 General, which closed in 2015). Under this system, points are awarded for age, qualifications, earnings potential and occupation. Visas would need to be renewed every 2 or 3 years, after 5 years residence Indefinite Leave to Remain would be granted, and British Citizenship after 6 years.
EU nationals already living in the UK (technically, this is likely to refer to those who first arrived before 29 March 2017): After the UK leaves the EU there will be a grace period of up to two years for those EU nationals already in the UK. This is likely to run from 29 March 2019 to 29 March 2021. This grace period is designed to allow these EU nationals time to make applications to the Home Office for visas. The visa could be:
- Indefinite Leave to Remain (ILR) if the individual has 5 years' continuous residence before 29 March 2021
- British Citizenship if the individual has 6 years' continuous residence before 29 March 2021
- If an individual has less than 5 years continuous residence before 29 March 2021 they will be permitted to remain in the UK until they reach the 5 year point, at which time they will be able to apply for ILR. They will need to apply to the Home Office for a visa but this will not be a full Brexit visa. The policy document suggests this will be automatically granted, based on proving initial residence prior to 29 March 2017.
EU nationals arriving in the UK between 29 March 2017 and 29 March 2019: EU nationals can travel to the UK freely during this period, as EU law still applies. After 29 March 2019 they will also benefit from the two year grace period, however they will need to apply for a Brexit visa within this time. If they do not meet the requirements of the new legislation, or they do not apply for a visa, they will be required to leave the UK.
EU nationals arriving in the UK after 29 March 2019: EU nationals will need to obtain a Brexit visa before (or on) arrival, meeting the requirements of the new legislation.
In addition to the above, there will be a Voluntary Scheme available at some point before 29 March 2019, which will allow eligible EU nationals to obtain their UK immigration status prior to Brexit.
EU citizens who already hold UK Permanent Residence (those with PR BRPs) will not be automatically considered to have Indefinite Leave to Remain, and will need to make a fresh application to transfer to ILR. This is due to the fact that PR has been granted under EU law, which will no longer have any status within the UK. The government advises that the process to switch from PR to ILR will be as streamlined as possible, but it is inevitable that a certain administrative burden (and possible fee) will be applicable.
We would therefore advise any EU citizen to apply for British Citizenship as soon as they are eligible, rather than remaining with Permanent Residence.
The Government has announced that they intend the application process for Brexit visas to be streamlined and digital, making use of existing Government records (e.g. HMRC) to minimise the amount of documentary evidence needed. White Rose Visas foresees administrative problems ahead, based on the current ability of governmental departments to collaborate in this way.
Fees will be at a 'reasonable level' ... White Rose Visas notes that although this may be true to start with, the Home Office is notorious for their annual fee increases of up to 25%, alongside stealth charges such as the Immigration Health Surcharge, and Immigration Skills Charge that mean the annual increase is effectively much higher.
EU citizens are advised not to make applications for documents such as registration certificates any longer, but to wait until the new UK legislation is introduced. White Rose Visas broadly agrees with this, however would still advise making an application for PR if an individual will be eligible for British Citizenship before 29 March 2021.
Please do not hesitate to contact White Rose Visas if you would like to discuss any of the above.
The full policy document can be found here.