Overview
After Brexit, EU nationals who live in the UK will no longer be able to rely on EU law to underpin their status and residence rights in the United Kingdom. The matter will be governed by UK law.
The position of existing residents is likely to be governed by the Withdrawal Agreement. The UK is likely to be subject to obligations under a withdrawal agreement with the EU in relation to EU nationals in the UK which with reciprocal provisions in respect of UK nationals in the EU states. The international obligations between the EU and UK are unlikely to be directly enforceable but are likely o be given effect in domestic law on which individuals can reside.
Immigration and nationality matters are reserved to the UK parliament under the devolution legislation establishing the devolved legislatures in Scotland, Wales and Northern Ireland. Under EU law, job seekers, workers, students, self-employed persons, self-sufficient persons, and students are entitled to reside in the UK for as long as they retain that status.
At present, it is not obligatory for person’s exercising EU citizenship rights to obtain registration certificates in the EU although this is contemplated by the domestic legislation. It is desirable in terms of proof and establishing a position.
Where rights are vested, there are likely to be legal remedies on the basis of non-retrospection, legal certainty, and fairness under domestic UK law and under human rights law.
UK citizens in EU are likely to continue to be able to continue to rely on EU general principles or newly-effect EU Fundamental Rights as well as treaty rights.
The way to permanent residence under EU Law after five years is likely to be protected. After six years there is a right to British citizenship under present legislation.
Long-Term Status
The UK has accepted in its White Paper on Brexit that persons who have lived lawfully in the UK for five years under the Citizens Directive should be entitled to a permanent right to reside in the UK after Brexit. These provisions are reflected in the draft withdrawal agreement.
In most cases, such persons, after five years’ residence, establish a right to permanent residence. This right is not quite as strong as naturalisation/citizenship but has most of the same characteristics. After certain a further period, such persons may be entitled to apply for naturalisation as British citizens.
The right to apply for British citizenship arises after six years’ residence. The process of naturalisation requires a permanent residence card. The residence permit application is somewhat administratively burdensome and in many cases is not formally taken up.
In effect, many residents rely on the right to apply for a residence permit residence if required without formally obtaining it. Many long-term residents effectively rely on their rights to residence after five years without obtaining a residence permit.
EU nationals becoming naturalised British citizens may retain their home citizenship in many cases, which entitles them to the rights of EU citizenship. However, most such rights may only be asserted in the EU state of citizenship.
UK residents of other EU states may be entitled to citizenship of those states based on their length of residence; many UK citizens are entitled to Irish citizenship. All persons born in Northern Ireland are entitled to Irish citizenship automatically. Many UK citizens are entitled to Irish citizenship on the basis of descent from Irish nationals.
Human Rights Issues
The UK is likely to remain subject to the Human Rights Act which gives effect to the European Convention on Human Rights. It grants certain protections in the context of immigration, in particular where there is break up of a family and removal from the state.
If the UK sought o change the rights of EU residents who came to reside in the UK in reliance on the pre-Brexit rules, the question of compatibility of the measures with European Convention of Human Rights or a substituted domestic UK Bill of Rights would arise.
The case law under the European Convention on Human Rights may offer protections in the absence of specific considerations. The protections are likely to be better for established permanent residents are likely to be very strong in the absence of particular circumstances, particular to the residents concerned.
Rights of permanent residency and their removal are subject to significant human rights law considerations. They apply to both the removal of the right and the procedures used to do so. The rights cannot be readily taken away. It is arguable that the right to reside has a specific status under the European Convention on Human Rights, notwithstanding that UK did not ratify certain of the key protocols
It is not yet clear whether the UK will eventually opt out of the European Convention on Human Rights. There had been proposals for a substitute UK Bill of Rights in place of the European Convention and Human Rights. They appear to have been put to one side
In the case of persons with less than five years residence, the position is less certain. Human rights considerations may require procedural safeguards and objective justification may be required. The question is whether the state would have a prevailing interest in changing the rights which would outweigh the hardship experienced by nationals on having to depart from established life in the UK
Right to Family Life
The right of family life as recognised under the European Convention can protect persons in the case of changes to their right of residence, at least in many if not most cases. The loss of a right to residence has a significant impact on personal rights. A change in residence status may be an interference with family life. The totality of social ties between the settled migrant and community in which they live constitute part of the concept of private life, irrespective of whether family ties have been developed.
Accordingly, the Convention may apply procedurally to the removal and to the substance of the decision for removal. The removal must be legitimate with a fair balance being struck between the interest of the individual and community as a whole. States enjoy a margin of appreciation. The permanent right of residence would be a very significant factor in most cases.
In the case of persons residing less than the five years in the UK, a fair balance test between the interests of the state and government is less likely to protects residents from the termination of the continued residence.
Legitimate Expectations
The principle of legitimate expectations may also protect EU citizens resident in the UK after Brexit. This may engage issues of a fair hearing and “no punishment without law”. A limitation should be prescribed by law to be a legitimate aim and be necessary for a democratic society. The principle requires that public authorities hold their promises on which people have reasonably relied.
The principles have been held to apply in the context of immigration and changes in the criteria in respect of persons who have come in reliance and entered under the older immigration rules. In the particular cases, the government had not made sufficiently clear that the older rules, procedures, and requirements could change.
The government has held to be under an obligation to respect the interest of immigrants who had entered under the old scheme. It was unable to offer a sufficient public interest which outweighed the unfairness which the changes would have visited upon those already admitted under the scheme. Accordingly, it was held at the existing scheme should apply to those who had already entered under it.
Draft Withdrawal Agreement
The UK and EU authorities have indicated that the legal status of EU nationals in the UK will be protected and that UK nationals in the EU member states should be protected on a reciprocal basis. It is likely that under human rights law, persons who have come to the UK on the basis of a reasonable expectation and have taken up a settled life would have both substantive and procedural protections against a change in their status.
There are questions as to what dates and cut-off periods might apply for a change in status. In particular, the position of workers who have taken up right to work but have not obtained permanent residence may arise in negotiations.
Irish nationals are not aliens or foreigners under UK law. The common travel area allows free movement between the Republic of Ireland and the United Kingdom. The EU and UK have agreed in principle to maintain it.
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