Will EU Nationals Be Able To Remain In The UK Following Brexit?

By Teni Shahiean of OTS Solicitors

EU nationals living and working in the UK are worried; about their homes, jobs and futures. Yes, the Vote Leave campaign made many promises regarding their ability to stay in the UK following a Brexit, but given that most of their campaign was comprised of dishonesty on an ‘industrial scale’, to quote Professor Michael Dougan, a leading EU lawyer and lecturer at the University of Liverpool, how many of their claims are actually based on legal fact?

When examined, many of the claims made by Boris Johnson and Michael Gove do not stack up when scrutinised. In this article, we will examine the rights of EU nationals that currently exist, and whether or not they will be protected should Britain formally leave the single market.

The Vienna Convention on the Law of Treaties Protects EU Nationals ‘Acquired Rights’

Article 70.1(b) Vienna Convention provides that termination of an international treaty ‘does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.’

The Leave campaign argued that under Article 70, the acquired rights of EU nationals living in the UK would be protected, as would the rights of UK citizens living in the EU member states, should Brexit occur. Acquired rights are rights that rights that weren't possessed originally but were acquired through the activity of the person. An EU citizen working in the UK acquired the right to reside in the country by exercising his or her Treaty rights.

However, the acquired rights under the Vienna Convention refer to the rights of states, not individuals. According to a recent article by Sionaidh Douglas-Scott, The International Law Commission, in its commentary on the scope of the identically worded predecessor to Article 70.1(b) (Article 66 draft Vienna Convention) specifically rejected an interpretation that it gave rise to acquired rights:

‘… by the words “any right, obligation or legal situation of the parties created through the execution of the treaty”, the Commission wished to make it clear that paragraph l(b) relates only to the right, obligation or legal situation of the States parties to the treaties created through the execution, and is not in any way concerned with the question of the “vested interests” of individuals.’

Therefore, the Vienna Convention does not offer any protection to wither EU citizens living and working in the UK or UK Citizens living and working in the EU after Article 50 has been invoked.

Article 50 and acquired rights

Do EU treaties require that rights acquired under EU law be continued, should a state leave the EU? Article 50 (3) states that all EU treaties will stop applying two years after the Article is triggered, unless an extension is agreed.

Neither Article 50 or any other EU treaty offers any protection of acquired rights, should a state leave the union.

Neither international nor EU law offers much protection of acquired rights of EU nationals living and working in the UK or the family members of EU citizens. Therefore, the Withdrawal Agreement will be crucial in setting out the new rights of EU nationals in the UK, with regards to their right to work, claim benefits, buy property and access healthcare. Home Secretary and front-runner to become the new British Prime Minister, Teresa May, stated over the weekend that the future of EU nationals, many of whom have lived in Britain for decades, is up for negotiation.

“What's important is there will be a negotiation here as to how we deal with that issue of people who are already here and who have established life here and Brits who have established a life in other countries within the European Union.

“The position at the moment is as it has been, there's no change at the moment, but of course we have to factor that into negotiations.”

“As part of the negotiation we will need to look at this question of people who are here in the UK from the EU.”

However, Brussels has indicated that it plans to play hardball, in part to deter any other member states following Britain’s path.

Employers will want further documentation

Nothing can or will change during the two years that Britain and the EU negotiate their ‘divorce settlement’. However, due to the uncertainty of their future status and the time and money invested in training new employees, it is likely that employers will want to see documentary evidence of a potential recruits right to remain in the UK.

Documents that can prove an EU national’s right to remain in the UK

All legal professionals are now advising EU citizens, EU family and extended family members to obtain documents that prove their right to reside and work in Britain. If you have lived in the UK for six or more years, you can apply for British Citizenship. The most common way to do this is to become naturalised. You will need to pass an English language and a life in the UK test and hold a permanent residence Card.

Those who have resided in the UK for five years or more are automatically granted permanent residence status. Although it was never necessary in the past, it is now imperative that EU citizens apply for a permanent residence Card. This can be used to confirm your permanent residence status to your current or prospective employers. You will also need to apply for naturalisation, which you can do after you have held permanent residence status for 12 months.

Conclusion

The post-Brexit status of EU nationals living in the UK is far from clear. Like everything associated with the Leave camp, the future is a shambles, with no clear idea or plan as to what is going to happen.

The best thing EU citizens can do at this stage is take control as best they can and obtain the relevant documentation that can prove their right to reside and work in the country.

OTS Solicitors is a fully regulated, highly regarded law firm, based in the centre of London. Our solicitors are considered some of the best Immigration experts in the UK and we are regularly called on by the media to make comments on developments in Immigration law. To make an appointment with one of our Immigration solicitors in relation to obtaining a UK permanent residence Card or British Citizenship, please phone us on 0207 936 9960.