Brexit: How Will This Affect UK Nationals Living in the EU?

June 28, 2016

At this stage it is impossible to predict how the rights of UK nationals living in remaining EU states will be affected, as UK policy towards EU nationals and the terms of the UK’s Withdrawal Agreement – once agreed – will impact EU immigration policy towards UK nationals.

One thing is clear; the UK ‘Leave’ politicians are divided over the best way forward following the result of the referendum, and therefore the process of formal separation and the negotiation of new terms with the EU is unlikely to be a swift process. The UK’s ‘divorce’ from the EU will not officially be triggered until the UK officially notifies the EU of its decision to leave, and the UK will remain part of the EU until the end of the 2 year negotiation period. As such, it is unlikely there would be any immediate impact on UK nationals living in the EU until the end of this 2 year period.

UK nationals living in the EU have one advantage over EU nationals living in the UK; unlike the UK, most EU countries already have a formal residence registration requirement for whereby EU residents staying for longer than 90 days are required to register their EU address either with the local town hall or police station within a certain timescale. The resultant registration certificate confirms the EU national’s right to live and work in that country and is generally valid for an indefinite period (although holders must notify the authorities each time they change residential address). Given the above, UK nationals in the EU should in theory, feel less jittery than EU nationals in the UK in the immediate term.

However, due to the regional system of EU registration in the rest of the EU, registration requirements and processes can vary from one municipality to another and while officially penalties exist for not registering within a specified timescale, in practice, in many regions, fines are not actively imposed. As a result, there may be large numbers of British nationals in some regions who have never officially registered as a resident – particularly those who may split their time between the EU and the UK.

How can a UK national confirm their status in EU country of residence?

If they have not done so already, UK nationals residing in the EU should apply for an EU registration certificate at their local Police Station, Foreigner’s Office or town hall to confirm immigration status as a worker, self-employed person or self-sufficient person, depending on the category under which they qualify.

However, applicants should be aware that:

• They may be held liable for back taxes
• The municipal authorities may decide to impose a fine, as above.

Documentary requirements for EU registration vary according to the town of residence and your immigration status so this should be checked with the local authorities on a case by case basis. Some regions have much more onerous paperwork requirements than others.

How can an UK national reside in the EU permanently?

In most EU countries, EEA/EFTA nationals may apply for a permanent residence after five years of continuous residence.

This document certifies the right of any EU national who has acquired permanent residence in the UK to continue to remain. Once an EU national has obtained this document, it is very unlikely that any future legislative measures (following the formal departure of the UK from the EU) will affect their residence status.

While processes vary from country to country, general criteria to apply for permanent residence are as follows:

• The applicant must have been living in EU country of residence for five years uninterrupted
• The applicant must have a secure livelihood with sufficient means to live
• The applicant must have health insurance
• The applicant must have provision for retirement (pension)
• The applicant must be free of a criminal record (international criminal checks usually undertaken)
• The applicant must possess adequate language skills of the language of residency, and a basic knowledge of local life, legal and social systems ( a number of countries such as Germany and Italy require applicants to undertake an integration course)

Will dual citizenship be an option?

Obtaining citizenship of another EU member state may be a very attractive option for those looking at long term security for continued free movement within the EU. Most EU countries allow citizenship applications after 8-10 years of continuous residence in the EU country of application, providing applicants can prove ‘good citizenship’ and a ‘sufficient’ degree of integration into local society.

However whilst most EU countries allow dual citizenship, some do not. Of note is Spain, where most nationalities are required to renounce their previous nationality upon being granted Spanish citizenship.

Implications for non-EU nationals in the UK and right to work elsewhere in the EU

Under the Van der Elst scheme, participating EU countries allow non-EU nationals already in possession of a UK residence the right to work in another participating member state on a temporary basis without the need to apply for a full work permit.

Global employers in a number of industries are currently able to mobilise employees between participating countries for short term assignments without the employee having to undergo a full work permit application process, meaning global employers can take advantage of a much expedited process to mobilise staff at much shorter notice.

It remains to be seen what impact the referendum result will have on free movement to the EU for work purposes for non-EU nationals resident in the UK, depending on the outcome of the pending negotiations for EU withdrawal and trade agreements.

Our advice

The demand for global mobilisation of employees is not likely to decrease in the coming years and as such, employers are advised to adopt a proactive, long-term approach to staff mobility, taking into account the likelihood of lengthier immigration timescales for sending staff on overseas assignments, in order to minimise any potential impact on both the business and assignees.

We advise all companies to identify and make a list of all employees currently working in the EU – both UK nationals and non-EEA nationals under the Van der Elst category – and to undertake an audit of right to work documentation in order to identify any cases where immediate action may be required. Newland Chase will be able to provide specific case-by-case advice as required.

For further information please contact us at [email protected].