Nadine Goldfoot, Partner, Fragomen Worldwide, UK
Key information for people uncertain about their future in the EU was made public on 8 December 2017, when EU negotiators and the UK Government released a joint progress report. Summing up results of the first phase of negotiations, the report confirmed that EU nationals exercising Treaty rights in the UK up to 29 March 2019 will be able to remain in the UK after Brexit. This includes dependent family members who currently reside in the UK as well as those family members who are not resident in the UK or an EU member state.
The joint progress report translates into three important developments for people looking to secure their rights of free movement. First, the cut-off date provides a timeline for planning prior to the expected withdrawal of the UK from the EU. Secondly, gaining clarity on the right to stay for EU nationals and their family members residing in the UK is a first step in helping people affected by Brexit to plan ahead.
Better guidelines on residence rights are a third and essential piece of the puzzle for those who are working to retain their rights of residence post-Brexit. Temporary residence will be given to those who have been in the country for less than five years and therefore do not qualify for permanent residence. More recently, on 28 February, the government set out its proposals for EU nationals arriving in the UK after the cut-off date, or during the transition period, which affords greater flexibility beyond 29 March 2019 than expected. While these transition proposals are subject to negotiation, they provide important clarity.
EU nationals and their family members will continue to be allowed to move to the UK during the transition period (from 29 March 2019) on the same basis as they do today. There will be no new constraints on working or studying in the UK in the transition period. This will also apply for UK nationals moving to the EU during this period. Those who choose to stay for more than three months will be able to register through a streamlined registration system.
EU nationals and their family members who arrive, are residents, and have registered during the transition period will be eligible to apply for permanent residence after five years’ continuous and lawful residence. They will also be able to apply for temporary residence status, allowing them to remain lawfully in the UK and work, study, or be self-sufficient for the five years needed to obtain settlement. For family members who join after, rather than during the transition period, it is expected that their eligibility will be in line with the rules in place for British nationals who are the sponsoring family. Irish nationals will not need to register. Having clarified these points, careful planning for people aiming to retain their EU rights of free movement post-Brexit can begin.
Securing EU Rights of Free Movement
Much of the focus to date has been on protecting the rights of EU nationals who are resident in the UK post-Brexit as well as on the reciprocal arrangements for UK nationals currently resident in other EU member states. Three additional questions emerge for the global investor client. First, what can UK nationals now do to retain their free movement rights, without compromising their residence in the UK? Second, what measures can EU nationals take to maximize their international mobility and secure EU citizenship and residence in the UK before 29 March 2019? Finally, what is the status of non-UK and non-EU national clients who were planning to move into Europe and benefit from free movement rights now or in the future? There are several options available for all these groups. While not always an obvious solution, ancestral routes towards citizenship of one of the other 27 EU member states should be explored.
A recent study at the University of Oxford reveals that even families who are third generation British will likely have deep ancestral roots in Continental Europe as a result of thousands of years of migratory exchange.a Given the history of European emigration and the size of the European diaspora in the contemporary world, this applies equally to all nationalities, and opportunities do exist in many countries. Exploring this route and proving an ancestral link to Europe may thus be a worthwhile undertaking. Where application processing times allow, this can enable a UK or non-EU national to obtain ancestral EU citizenship, and non-UK nationals could, thereafter, establish residence in the UK prior to Brexit or even within the transition period. Should this route not provide a viable solution, then there remains the option of securing free movement rights by means of economic citizenship.
While further negotiations and final withdrawal agreement talks are still under way, we now have the basic guidelines and strategies to help EU nationals, British citizens, and non-EU nationals secure their EU free movement rights and retain their residence in the UK through the transition period.
a S Leslie et al. ‘The fine-scale genetic structure of the British population’ (2015) 519 Nature DOI: 10.1038/nature14230