Much of the discussion following the UK’s referendum on leaving the EU has been about how ‘Brexit’ will be implemented. Indeed, this is something which has been much debated in the press, by parliament, within the institutions of the EU itself and even by the UK’s Supreme Court. But putting aside the actual process for leaving the EU, more relevant questions for those involved in the long-term strategic planning of their institutions is what will happen to the rules and regulations which are currently derived from the EU and what are the implications likely to be in terms of staff and students?
Immigration was one of the key issues in the debates which preceded the referendum, with campaigners on the leave side insisting that leaving the EU would allow the UK to “take back control” of its borders. Like many of the arguments coming from both sides of the debate, this was slightly duplicitous: the UK is already able to opt-out of European laws relating to immigration from outside the EU, which is why the UK is not part of the ‘Schengen Area’.
However, the UK has far less control over citizens of other EU members states coming to the UK to exercise a right of free movement under the EU Treaties. Whilst an EU national is exercising a right of free movement (as a worker, self-employed person, student or self-sufficient person) in another member state, he/she and his/her dependant family members are automatically entitled to remain there. After five years of exercising a free movement right in that member state the EU national and his/her family members acquire the status of permanent residence. (Free movement rights actually extend to citizens of the wider European Economic Area [EEA] and Switzerland, so references to EU nationals here should be read as also applying the EEA and Switzerland.)
There are three main questions that arise:
What controls will be placed upon EU nationals who come to the UK, eg to work or study?
What will happen to the estimated 3 million EU nationals who are already in the UK?
Will there be any changes to the UK’s immigration controls for non-EU nationals as a result?
At present we have no way of knowing the answers to any of those questions, but we can still make educated guesses piecing together the small bits of information which have emerged so far.
Various suggestions have been made as to what an immigration scheme for EU nationals would look like:
Perhaps EU nationals would simply have to fit in with the existing immigration rules for non-EU nationals.
There may be schemes for different categories of EU national, with those who are deemed to be of ‘high value’ (eg highly qualified and skilled workers) having something akin to free movement, work permission for those with job offers and full restrictions for everyone else.
Free movement continuing as it does now (eg if the UK continues as a member of the EEA).
What seems quite clear is that immigration will form a central part of the government’s Brexit strategy. During the Conservative party’s conference in October, the two topics were raised almost interchangeably and the Home Secretary, Amber Rudd, reconfirmed the government’s commitment to reducing net migration to the tens of thousands. Whilst some ministers, including Philip Hammond and Boris Johnson, appear to be open to removing students from that target, the Prime Minister seems committed both to the target and how it is calculated.
More recent comments from Ms Rudd have suggested that free movement which does not require any form of registration is not an option, so it seems likely at this stage that EU nationals wishing to live (and work or study) in the UK will need some form of residence documentation. On that basis, unfettered free movement from the EU is highly unlikely to continue and that will be coupled with further restrictions on some non-EU immigration categories, like students.
It also seems unlikely that EU nationals would be required to comply with the same rules that non-EU nationals are currently subject to, as this would surely cause a great deal of upset and make negotiations even more difficult. So a hybrid scheme for EU nationals which sits independently of existing immigration controls appears to be the most likely route. Whether such a scheme would automatically permit work following registration, or an additional application for work permission would then be required, remains to be seen.
One might hope that reducing the number of EU nationals coming to the UK might lead to the liberalisation of immigration routes for non-EU nationals. However, the government’s commitment to its net migration target brings such hopes further out of reach every quarter when the Office for National Statistics publishes its estimates of the net migration figures. The Immigration Rules never remain stable for very long though, so regular tinkering with those rules is likely to continue, perhaps more so in reaction to movements from the EU.
As for the situation for EU nationals already in the UK, nothing has yet changed for them as far as their rights to live and work or study in the UK are concerned. However, many will now be concerned about their future.
Even holders of permanent residence documentation may not be guaranteed any right of residence in the UK post-Brexit
The government’s negotiations with the EU about its departure from the EU will focus on EU nationals already in the UK and UK nationals living in other parts of the EU. It is reasonable to assume that transitional arrangements will be put in place for EU nationals who are already here but those people may wish to apply for documentation in order to confirm their status. Such an application only attracts an application fee of £65 per applicant and although the backlog is now reportedly in excess of 100,000, it might help to have this documentation if an EU national wishes to assert his/her rights to live here post Brexit.
The documentation which an EU national can obtain depends on whether or not he/she has acquired permanent residence. If he/she has been exercising free movement rights in the UK for five years then he/she can consider applying for a document certifying permanent residence. If the individual has not yet acquired permanent residence then he/she can apply for a registration certificate as confirmation that he/she is in the UK and exercising one of the free movement rights.
Family members of EU nationals (both EU nationals themselves and non-EU national family members) can also apply for documentation to evidence their right to live and work or study in the UK.
Finally, EU nationals and their family members who have acquired permanent residence may wish to consider applying to naturalise as a British citizen. Even holders of permanent residence documentation may not be guaranteed any right of residence in the UK post-Brexit, but those who have been naturalised as British citizens should have no such concerns. A couple of things to note about this though: firstly, applications to naturalise from EU nationals and their family members can only be made after permanent residence documentation has been issued; and secondly, while the UK permits a British citizen to have more than one nationality, some EU countries do not, so acquisition of British citizenship could lead to the loss of other citizenships in which case individuals would need to decide for themselves which citizenship is more important to them.
It looks unlikely that there will be any clarity on post Brexit immigration for some months but in the meantime there are steps that EU students and staff can take which may provide them with some reassurance in these uncertain times and hopefully put them in a stronger position when the new immigration scheme for EU nationals is implemented.
Tom Brett Young is an associate and immigration law specialist at leading education law firm Veale Wasbrough Vizards. Tom can be contacted on 0121 227 3759 or at firstname.lastname@example.org
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