Immigration specialists at national legal and wealth advisory firm Irwin Mitchell Private Wealth have seen an upsurge in enquiries from European Economic Area (EEA) nationals, many of whom are confused as to what their current rights of residence in the UK are, and others who want to understand if their current rights to work and reside in the UK will be protected post-Brexit.

Whilst there is speculation that the Prime Minister could set the day on which the UK triggers Article 50 as the cut-off date by which EEA migrants must have arrived in the UK in order to have the automatic right to stay in the UK permanently, Downing Street indicates that the deadline for EEA nationals to register their right of residence in the UK will be part of Brexit negotiations.

Ben Xu, an immigration solicitor in Irwin Mitchell Private Wealth’s Immigration team commented:

 “Over the past six months we have experienced a significant number of enquiries from EEA nationals, in particular high net worth individuals (HNWIs) living, working or studying in the UK, about their right to stay in the UK once it withdraws from the EU.  There is much confusion about their current status, and many are completely unaware of what measures they need to adopt in order to comply with immigration rules. Failure to comply could have detrimental effects on EEA nationals’ ability to enter or live in the UK in future. All EEA nationals, in particular self-sufficient persons and students who are currently living in the UK, need to be aware of their true legal position.  We would urge anyone finding themselves in this position to seek professional advice as soon as possible.” 

Irwin Mitchell Private Wealth’s Immigration Team has produced the following overview in regard to EEA nationals’ rights of residence.  

 EEA nationals’ rights of residence

After a long silence, the British Government is starting to put in place a framework for the negotiation of Brexit and preparation for a post-Brexit regime.  There has been a flurry of statements, papers and notes since the beginning of the year. Some of them have a direct effect on EEA nationals living in the UK now.  Most important are the guidance notes that the Home Office has published with regard to EEA nationals’ rights of residence.

The notes do not change the rules for EEA citizens now but make it clear how the Home Office will apply them. They also show that Home Office’s approach is likely to be harsher than in the past.  In particular, the Home Office expressed its intention to take action against EEA nationals who may be engaging in conduct intended to circumvent the requirements of the Immigration (European Economic Area) Regulations 2016 (the “Regulations”) and, in certain circumstances, to use its power under the Regulations to remove the individuals from the UK and/or refuse their re-entry into the UK.

What does this mean for you if you are an EEA national in the UK?

If you are currently living in the UK, you are doing so under EU law, which means that you should fall into one of the three categories:

1. Initial rights of residence

This category is generally for new arrivals or people who spend short amounts of time in the UK.  Under the Regulations, you, as an EEA national, and your family members can stay in the UK for a maximum period of three months, provided that you hold a national identity card or passport issued by an EEA state.

During the initial three-month period, you do not have to comply with any special conditions or formalities. However, you are now expressly required not to become ‘unreasonable burden on the social assistance system of the UK’.  

2. Extended rights of residence

You are only permitted to continue to live in the UK beyond the three-month period if you can prove that you are here in the UK exercising your EU Treaty rights as a ‘qualified person’.

You are a ‘qualified person’ if you are living in the UK as a jobseeker, worker, self-employed person, self-sufficient person or student.  If you are an economically non-active person (e.g. a self-sufficient person or student), you must have comprehensive sickness insurance cover to remain in the UK.  

3. Permanent rights of residence

You may have already obtained permanent residence if you have lived in the UK for five years continuously.  Permanent resident status is acquired automatically by operation of EU law, regardless of whether you have a document from the Home Office certifying such status.