Should our EU migrant workers apply for UK residence ahead of Brexit?

28 March 2018

Many EEA employees living and working in Northern Ireland want to know whether and how they can secure their status here, following the UK referendum decision to leave the European Union. The answer is unfortunately not so straightforward.

Should our EU migrant workers apply for UK residence ahead of Brexit?

At the moment, it is open to EEA nationals to apply for a permanent residence document if they have been living in the UK for five years, in most circumstances. A permanent residence card confirms a person’s right to remain in the UK indefinitely. Such persons are then able to apply to become British citizens should they wish to do so.

Those EEA nationals who have been resident in the UK for less than five years can in most circumstances apply for what is known as a registration certificate. At present, EEA nationals are not required to hold either a permanent residence card or a registration certificate - these documents are entirely optional - their rights to live and work in the UK not being defined by such documents, but by the EU Treaties, themselves.

The present position of the UK government is that this will all change following Brexit. Instead, the UK Government wants to award settled status - again, the right to live in the UK indefinitely - to EEA nationals who have lived in the UK for five years and entered before a specified date. That specified date is also under negotiation, but would fall on or between 29 March 2017 and 28 March 2019. Those who have not lived in the UK for five years by the specified date would be able to apply for temporary status. They would then be able to apply for settled status after five years residence. The precise requirements of temporary status and settled status applications are not yet known. It is likely that criminality checks will be undertaken and some evidence of residence will be required. At this stage, and based on a limited amount of published information, EEA nationals are likely to fall under one of three categories:

(1)          Those who have been in the UK for five years and want to become British citizens as soon as possible;

(2)          Those who have been in the UK for five years but have no immediate desire to become British citizens; or

(3)          Those who will not have lived in the UK for five years by the specified date.

Against the backdrop of ongoing uncertainty in relation to the Brexit negotiations and whether and what agreement will be reached between the EU and the UK, it is understandable why an EEA employee might wish to apply for a registration certificate or permanent residence card, if eligible, but it is a personal choice for each individual employee. If, as indicated, the permanent residence status becomes invalid/obsolete post Brexit, then it is likely that they will be able apply for settled status. Indications are that having a document confirming permanent residence is likely to facilitate/streamline the process of obtaining settled status, and that having a registration certificate will make it easier to gain temporary status. Many EEA nationals may also find it useful and reassuring to have a formal record of their continuous residence in the UK in a qualifying status, given that the law in this respect has not yet changed and we do not know if, how or when it will do so.

Brian Moss is a solicitor in Worthingtons Solicitors, Belfast who is providing specialist immigration advice to organisations and individual employees. For legal advice please telephone 028 9043 4015 or email brian@worthingtonslaw.co.uk

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