UK: EU Residence Rights Amendment Dismissed by Parliament

On Wednesday 8th February, the House of Commons voted favourably to the European Union Notification of Withdrawal Bill. A number of amendments to the Bill were rejected, including a modification request to protect the residence rights enjoyed by EU citizens lawfully resident in the United Kingdom on the date of the Brexit vote (23rd June 2016).

While some sources claim that this may imply all EU nationals currently living in the United Kingdom will be losing their right to live and work in the country after the Brexit process is completed, there are still legal discussions around International Law that may be applied to protect residence rights.

The main point discussed is the 1969 Vienna Convention on the Law of Treaties (an International Treaty in which the UK and most of the European countries are part of – with the notorious exception of France). Stated in Article 70 of the aforementioned treaty, it would be possible to affirm that EU nationals already living in the UK at the time of Brexit would certainly have individual “acquired rights” (the so-called “Treaty rights” in mainstream media). This will technically grant EU nationals the right to stay, most probably following an internal immigration process in the UK after the country leaves the European Union.

Another option that is being deliberated is the effect of the European Convention on Human Rights (ECHR), a legal instrument that does not belong to the European Union Legislation and therefore will be kept as part of the International Law applicable to the UK even after its exit from the EU. Given that an extensive number of EU rights overlap with ECHR rights (particularly the right to private and family life and the prohibition against discrimination) and the ECHR’s effective national enforcement mechanism in the Human Rights Act 1998, EU nationals already living in the country may be able to maintain their residence rights by its forceful application in Courts.

However, at this present moment, it is not clear how or if the immigration status of EU citizens in the UK will be guaranteed. The most relevant question is whether it will be possible to agree on this matter in the withdrawal agreement in a way in which satisfies both the UK and the EU as well as the nationals of both groups.

Our advice

Until final decisions are taken with regards to residence rights, EU nationals living in the UK for less than 5 years should get their EEA Residence Permit in order to have proof of residence, previous to the completion of the Brexit process. In the case of continuous residence for 5 years or more, EU nationals should apply for Permanent Residence in the UK.

For further advice and assistance with these permits, please email us at enquiries@newlandchase.com.

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