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Brexit & Immigration

Karma Hickman's picture

On 23 June 2016, Britain voted in a referendum and decided to end their forty three year membership with the European Union. The primary issue of Brexit appears to be Immigration.

The primary question of law, whether or not the referendum result is legally binding on the government, is yet to be answered as the European Union Referendum Act 2015 contains no provisions as to its legal effect. We are yet to see what will happen to the rights of the European Union citizens already living in the UK and those who wish to come to the United Kingdom.

Once the Government of the United Kingdom makes a decision to enforce the decision to leave the European Union, terms of Article 50 of the Treaty on European Union become applicable. Article 50 provides:

‘1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’

The provisions of Article 50 will be engaged only when the United Kingdom notifies the European Council of its intention to withdraw.  This notice triggers the obligatory negotiations and agreement of the arrangements of the United Kingdom with the European Union.

The time limit for the United Kingdom to apply law of the European Union relating to the withdrawal is expressed to be: i) the date of entry into force of the withdrawal agreement, or ii) two years from the notification of intention to withdraw (if no withdrawal agreement has been reached by that time, or iii) any later period approved by the European Council.

The most attractive option following the Brexit is a bilateral agreement between European Union and the United Kingdom. It would be in the best interest of the British citizens living in other European Union Member States, for the United Kingdom to negotiate some form of free movement, as otherwise, the British citizens would become third country nationals and as such subjects to more stringent Immigration rules which are far less favourable than provisions of European Regulations that are implemented in each Member State.

There is a long wait ahead to understand exactly how the Brexit vote to leave the European Union will affect the immigration status of many. Notwithstanding this, we would strongly advise those who may be eligible for Permanent Residence or British Citizenship to make their applications to secure some form of status in the United Kingdom.

European citizens who have no documents identifying their status in the United Kingdom, and their family members have the following options:

1. Apply for registration certificate (European citizens) or residence card (for non-European citizens) to register their residence in the United Kingdom. Both documents can last up to five years, after which the holders may be eligible to apply for permanent residence.

2. Apply for permanent residence, following a continuous period of five years.

Nationals from the A8 countries – Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia must bear in mind that their application for permanent residence may not be successful if they were working in the United Kingdom between 2004 – 2011, without being registered under the Worker Registration Scheme. As at the time there were certain exemptions from the registration under the Scheme, please contact us to arrange an appointment to assess your eligibility.

3. Apply for British citizenship. Prior to November 2015, European nationals applying for British citizenship were able to submit their application for Naturalization without having a document certifying their permanent residence. From 12 November 2015, all European citizens wishing to apply for British citizenship must prove their status by submitting document certifying permanent residence.

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Karma Hickman's picture

Karma is an Associate Solicitor in our Immigration department, where she undertakes work in a broad range of fields.

She has a particular interest and expertise in international surrogacy and international adoption cases.

Chambers & Partners recommends Karma as an ‘Associate to Watch’ in its 2017 rankings, noting that she “stands out for her ability in complex international surrogacy and partnership cases.

Karma qualified as a solicitor in 2012, after completing her training contract at Fisher Meredith, where she remained until its merger with Bishop & Sewell. She previously worked part-time at Birnberg Peirce’s immigration team while completing her legal studies, and holds an LLM in International Human Rights Law from the LSE. Before embarking on her legal career, Karma lived in Italy for many years, where she worked as a newswire journalist and translator.