We believe, the answer is: It’s probably a good idea to have confirmation of your status in the UK. So apply for those residence documents!
On the one hand, informal indications are that EEA nationals will be allowed to remain in the UK, and that probably also includes family members. On the other, the official Government position remains that it is a matter for negotiation and we also do not know on what basis EEA nationals will be allowed to remain.
We lawyers may be described as pessimists: a major part of our job is to think of what can go wrong in order to prevent it occurring.
Our view at Elm Rose is that it probably is better to apply now for permanent residence or residence documents, if only to work out if there are any problems so that there is time to spare to resolve them. For example:
- If those already with permanent residence documents are treated more generously or find it easier to apply for a new immigration status, it might be wise to apply now.
- If you do not apply now and find later that you do not have the right documents, that could cause problems. If you apply now and find you do not have the right documents, you still have plenty of time to sort it out.
- If it turns out that having a right of residence is important in some way, it would be better to know now whether you do or do not have a formal EU law right of residence. Many EEA nationals living in the UK, some for very many years, do not, in particular self sufficient people such as those married to British citizens who do not have comprehensive sickness insurance.
- Third country national family members of EEA nationals (e.g. the Brazilian wife of a Portuguese national) might later have difficulty proving their status if their relationship with the EEA national breaks down, so it might be wise to obtain residence documents now in preparation for Brexit.
- Those might benefit from what are called “derived rights of residence” based on case law like Zambrano should do everything possible now to regularise their position and obtain residence documents. It is this group of beneficiaries of EU law who are most likely to be vulnerable when Brexit occurs.
Although not entirely necessary at this point, applying for a residence document is cheap at only £65 and nothing is lost by making the application.
Should you naturalise as a British citizen?
Some EEA nationals or family members may wish to naturalise as British citizens. This is a very personal decision. However, it is important to be careful because the UK Government now says that the family members of dual citizens cannot benefit from EU free movement law. This means that any family members from outside the EEA would lose their right of residence in the UK if their EEA family member naturalises as British.
An EU citizen who naturalises will also lose any possibility of relying on EU free movement law for family members in future, if such rights continue to exist in any way following Brexit. For example, entry of dependent relatives is virtually impossible under UK immigration rules but is relatively straightforward under EU law.
Prior to 2012 the Government had no problem with dual citizenship giving rise to EU residence rights but in response to a case called McCarthy the UK changed its approach. It is arguable that the current UK approach is unlawful in EU law but this is no time to be standing on principle.
Another thing to consider carefully is whether the original current country of nationality permits dual citizenship. In British nationality law it is not a problem to be a citizen of another country at the same time. That is not true of all countries and some countries even automatically terminate a person’s citizenship if he or she becomes a citizen of another country.
For those who do decide to naturalise, the main issues are the application fee and that since 2015 EU nationals and their family members must have had permanent residence for a year at the time of application and also, separately, need to hold a permanent residence certificate or card at the time of application.
Home Office officials are on occasion giving out incorrect information on telephone hotlines and claiming that a person must have held a permanent residence certificate or card for a year before applying for naturalisation. This is incorrect. Permanent residence is acquired automatically whether or not the person has a certificate or card.
Should you or anyone you know, require advice on their status in the UK or assistance with an application, CONTACT US now for a no-obligation chat.