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Free Movement

If and when the UK finally leaves the EU, the rights of EEA nationals (EU citizens and citizens of Norway, Lichtenstein and Switzerland) and their family members to enter and live in UK will no longer be protected by EU law. Until that point, those rights will continue and cannot be changed by UK law.

Free movement today

EU law guarantees the right of EEA citizens to enter UK. The only document required is a national identity document or a passport. Non-EEA family members of the EEA national (3rd country nationals) require a "Family Permit", issued by the UK government. EEA citizens have the right to remain in the UK as long as they are "qualified persons", exercising "treaty rights". This means that they must be job seekers, workers, self-employed persons, self-sufficient persons or students. Their family members, EEA or non-EEA nationals, have the right to remain with them.

EEA citizens who have lived in the UK as "qualified persons" for five years and their family members acquire "permanent residence". EEA citizens cannot be removed from the UK except in very limited circumstances, "justified on the grounds of public policy, public security or public health".

EEA citizens and third country national family members must be granted residence documentation by the government if they apply for it. Applications were previously free, but now require payment of an "administrative" charge. The document is evidence of the right to remain, but it does not confer that right; it recognises a right which already exists. Such documentation is not compulsory. A person who has resided lawfully in the UK for five years and has been "settled" for 12 months is entitled to apply to "naturalise" as a British citizen. Permanent residence under EU law is a form of "settlement". This procedure is governed by UK law, not EU law. It is always at the discretion of the government.

No free movement tomorrow

Unless there is an agreement to the contrary, the UK's exit from the EU will place EEA citizens in the same position as the nationals of all other countries in the world. To enter or remain in the UK they will be subject to the extremely and increasingly restrictive immigration control imposed by successive UK governments. For instance, they will require visas to come to UK as visitors or as students. Such visas are commonly refused with no right of appeal. Only the very highly qualified will be able to get work permits and only the extremely wealthy will be able to come and do business.

The position of EEA nationals already in UK at the time of the UK leaving the EU is unclear (deliberately being kept unclear by the government).

Those with permanent residence, after five years' residence as "qualified persons" will have a right to remain which the UK courts will recognise. However, the UK parliament could legislate to remove that right, or to impose conditions on it (such as a minimum income requirement).

Those who have not resided in UK for the full five years and do not have permanent residence will have no legal right to remain in the UK. There is no reason to suppose that EEA nationals who have not resided in UK for five years will be allowed to stay and complete that residence period. The government is already talking about a "cut off point" after which those who enter the UK will not have their right to remain recognised in the future.

Protecting status

For those without permanent residence there is no legal avenue open to improve or ensure their status. They would be well advised to apply for residence documentation as proof of their current status, because the government may well challenge that status when they later qualify for permanent residence. Family members of EEA nationals who are themselves "third country nationals" are particularly vulnerable and must take care to protect their status by registration. Those with permanent residence already should apply for permanent residence cards as their status may also be challenged in the future.

EEA citizens who have resided for 12 months following their acquisition of permanent residence may consider applying to naturalise as British citizens. There are two reasons in favour of this. Firstly, there is the possibility of the UK legislating to remove permanent residence. Secondly there is the threat of deportation. Only a British citizen is exempt from deportation for criminal offending and the offence need not be particularly serious to trigger this. It is a particular problem for children.

Arguments against applying are the cost (the fee is not refundable in the case of refusal), the need to take language and "Life in UK" tests, and that the fact that the application may be refused without an effective right of review. There is great uncertainty around the issue of "character", which can lead to refusal in the case of minor penalties and infringements of immigration law. One potential example could be for a national of one of the A8 accession countries who had inadvertently failed to obtain worker registration during the period when this was required.

The government has recently imposed a condition that a person with permanent residence must obtain a permanent residence card before applying for British citizenship. (This is probably not legal, but when has that ever bothered the immigration authorities?). The applicant need not wait for a year after obtaining the permanent residence card if the total period of residence is more than 6 years. But there may be a problem in proving this, and unless the Home Office can be persuaded to disclose the date from which they calculate the person's residence (the "deemed date of residence"), it may be safer to wait for the 12 months after the issue of the permanent residence card.

Parents of British children also currently have the right to reside in UK under EU law. That right will be taken away and they must apply for the right to remain under UK law as soon as they can. Currently they can expect to be granted leave to remain because their right to family life is protected by the European Convention on Human Rights. But that may not last since the government may still decide to leave the ECHR also.