Deportation demonstration Photo: ndlon

Brexit and immigration – will you be able to stay in the UK?

By immigration lawyer Alison Hunter

Following the dramatic result of the Brexit referendum the United Kingdom must turn to dealing with the reality of a ‘leave’ vote. Many commentators have suggested that it was the single issue of immigration which led to the decision by the British electorate to back Brexit and it is inevitable that non British citizens living in the United Kingdom are feeling less welcome than before. Many of these foreign nationals though will want to continue to call the United Kingdom their home.

Here is a summary of what we know so far and how it may affect you and your families living and working in the United Kingdom.

First things first – timing

The first thing to note is that nothing is going to change quickly. The United Kingdom is very likely to remain a member of the European Union for at least another two years.

Article 50 of the Treaty on the European Union (TEU) sets out the requirements for leaving the EU and, the UK must formally give notice of its intention to leave, triggering a two year period (which may be extended by unanimous agreement) after which its membership of the EU will cease. David Cameron has indicated that Article 50 is unlikely to be invoked until a new prime minister is in place in October. Once notice has been given, the UK will begin negotiations with the EU for the terms of exit.

People here on the basis of UK immigration law – no need for concern

If you are an American national and you are here in the United Kingdom on the basis of your work, for example on a Tier 2 visa, then Brexit will not affect your status or that of your dependants. This is because the rules about your immigration status are contained in laws passed by the United Kingdom parliament and remain completely unaffected by Brexit.

In the longer term though we would urge individuals and employers to keep a keen eye on developments. The current rules in respect of business immigration take into account the need for UK businesses to be able to hire skilled migrants but of course much of the demand is fulfilled currently by European migration. European migrants not only carry out skilled jobs but also fill many lower skilled jobs. If a future government recognises the demand from business and the need for immigration, it is just possible in the longer term that a wider category of immigration options may be available to non-EU nationals. This though needs to be considered in the context of very loud calls for an overall reduction of the number of migrants coming to the United Kingdom.

A European connection – what to do?

So what happens now if you are in the United Kingdom on the basis of being a European national because you hold dual nationality? Say for example you hold a German passport and a US passport and you are working in the United Kingdom on the basis that you are a European national. Or you are possibly the spouse or partner of a European national and hat the right to live and work here because of your relationship.

Until the final exit of the United Kingdom the rules governing how European nationals and their family members can study, work or reside in the United Kingdom should remain as they are. In other words, EU citizens will continue to have rights to reside and work here at least until the United Kingdom formally leaves the EU.

After a formal Brexit, it is expected that there will be transitional arrangements which will grant those EU citizens who are already here legally, permission to remain under UK immigration rules. What is not clear, is on what basis they will be allowed to remain – will their stay be indefinite or temporary? Will EU citizens and their families who have acquired permanent residence after working in the UK for five years automatically obtain the right to remain indefinitely? Will the transitional arrangements apply to those resident in the UK on the date of the referendum or on the final date of a full Brexit? What application procedures will EU citizens have to go through to document their right to remain in the UK?

All these questions remain unanswered as yet. However, we are advising all our European clients and their family members to ensure they have documentation showing their current right to be here if they are in the United Kingdom on the basis of European law. Most European nationals will not have obtained a registration certificate as proof of their right to reside here, nor are they likely to have obtained permanent residence cards to which they are entitled if they have been exercising their European rights for five years. We are urging people to now do so, to ensure first and foremost, if or when transitional provisions are in place, that they can prove their right to be here, for example to employers.

Equally, if you are a European national or family member with permanent residence, this would be a sensible time to consider whether you want to naturalise as a British national. There may of course be significant reasons against naturalising but it may also be the most secure way of ensuring you and your family can remain long term in the UK.

What next?

It is impossible to know at the moment what exactly is going to happen. There is currently not a country in Europe that benefits from the Single Market which has not had to sign up to the free movement of persons. And already over the weekend members of the Leave campaign have indicated that to ensure some access to the Single Market they may have to concede some free movement of persons. In this wave of uncertainty, our best advice is to document yourself if you are here on the basis of European law and stay abreast of developments in the field of immigration.

Alison Hunter is an immigration lawyer at Wesley Gryk Solicitors LLP specialising in European free movement law. If you would like further advice please contact them on 020 7401 6887 or contact@gryklaw.com

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