A recent statement that the free movement of EEA/Swiss nationals ends on the 31st October 2019 sent proper shockwaves to many living in the UK and exercising their free movement rights in the UK. Let’s clarify some of the common misunderstandings.
Can the UK Unilaterally Declare the End of the EU Rights in the UK?
The third paragraph of Article 50 of the TEU states:
- 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.
Therefore, the recent statement made by the UK authorities is very much in the line of the wording of the Article 50 of the TEU. Unless, “the European Council in agreement with the Member States concerned,” grants another extension.
What About the Prorogation of the UK Parliament? What Does the Unwritten Constitution Say?
Miller litigation tested the boundaries and the division of power under the UK Constitution. The main takeaway as the result of this process is the courts’ confirmation that the Crown’s prerogative to negotiate international treaties belongs to the government of the UK and not the Parliament.
Therefore, Boris Johnson as the appointed Prime Minister may be correct to exert political pressure on the Parliament and on the EU Member States in search of the appropriate and acceptable agreement, if any.
EEA/Swiss Nationals in the UK: Permanent Residence v. Settled Status
The Home Office updated their guidance to state that the deadline to apply for the settled status for the EEA/Swiss nationals is 31 December 2020, if the UK leaves the EU without an agreement. Similarly, the EU permanent residence status will apply until 31 October 2019, if no agreement is reached.
If the agreement is reached, there is the 2 year transitional period when EU rights continue to apply to the EEA/Swiss nationals in the UK. The original deadline to apply for the settled status in the case of the UK leaving in an orderly manner is 30 June 2021.
Settled Status v. Permanent Residence: Source of Law
The rights of the EU (EEA/Swiss) exercising free movement rights across the European Union are directly protected under the EU law. This caused a friction in the UK as the Home Office could not easily amend or delete the rights of the EU nationals in the UK under the domestic law.
The legal concept of the settled status to define the immigration status of the EU nationals in the UK was specifically introduced to mark the departure from the EU legal obligations under the EU Treaties. Settled status for the EU nationals is the UK’s domestic interpretation of its legal obligations under the international law.
Therefore, the practical UK immigration advice we give to the EU nationals who have been resident in the UK for a very long time is to seek to protect their rights under the EU law and apply for the permanent residence prior to applying for the settled status under the UK legal concept. UK authorities will not be able to refuse the settled status to the EU nationals who hold a document certifying their permanent residence.
So far, we have seen a number of media articles outlining the refusal of settled status to several high profile EU nationals who have been resident in the UK for a very long time.
The Elusive Nature of the Permanent Residence
Under the EU law, EU nationals who live in an EU member state are not required to prove their permanent residence. However, they can apply for a document certifying their permanent residence, if they so choose. It is not mandatory. Nevertheless, they need to be able to prove their status if they apply for a document certifying their permanent residence.
Permanent residence rules for EU nationals are extremely flexible, which means that provided they have the evidence they can go back as many years as necessary and prove their entitlement. Their status may be recognised and renewed retrospectively, provided they continued to live in their host country for the extensive period of time.
Students and self-sufficient persons are required to demonstrate that they hold comprehensive health insurance in order qualify for permanent residence under the EU rules. The settled status does away with this requirement. Therefore, certain applicants may have a better chance to apply for the settled status under the UK rules.
We encourage EU nationals, especially, who have been resident in the UK for 5 years and longer to no longer delay their application process and explore the opportunity to seek to secure their UK immigration status under the EU rules.
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