Who can stay after Brexit?

Written by Danielle Cohen

Written questions in Parliament allow Members of Parliament to ask Government Ministers for information on Government policies and the activities of various Government Departments.

Her Majesty’s Government was asked whether they intend to remove those EU citizens who are residing in the UK otherwise than in accordance with the Free Movement Directives? Baroness Williams of Trafford answered on 27th March 2017, stating that under EU law EU nationals who wish to stay in the UK for longer than three months can only do so if they are exercising treaty rights. This means that they must be job seekers, workers, self-employed, self-sufficient or students. The Free Movement Directive 2004/38/EC requires students and self-sufficient persons to have comprehensive sickness insurance and self-sufficient resources to support themselves so their families do not become burdens on the UK social assistance system. The answer confirms that these EU nationals can continue living in the UK. However, EU nationals who do not meet the requirements of the Free Movement Directive are not lawfully resident in the UK and therefore may be liable to removal.

There are situations in which one can acquire permanent residence before completing the five years residence, for example, Article 17(1)(b) of the Directive confers permanent residence on EA nationals, workers or self-employed persons who have resided continuously in the UK for more than two years and who have stopped working as a result of permanent incapacity to work. Workers or self-employed persons who at the time that they stopped working have either reached pension age or ceased paid employment to take early retirement but have worked in the UK for the preceding 12 months, and have legally resided in the UK continuously for more than three years automatically acquire permanent residence under Article 17(1)(a) of the Directive. Once an EA national has acquired permanent residence through one of these methods their family members irrespective of nationality also acquire permanent residence in the UK.

The permanent residence Rule came into effect on 30th April 2006. Periods of residence falling wholly or partly before the 30th April 2006 count towards the five years requirement for permanent residence, as long as the person was exercising treaty rights. However, if the EA national in the UK stopped exercising treaty rights for more than two consecutive years before 30th April 2006, that person will have not acquired permanent residence on the date under EU law (even if he had lived and exercised treaty rights in the UK for many years before that).

Polish nationals were subject to the Workers Registration Scheme. This scheme was in place until 1st May 2011, and it did not apply to self-employment. Any period of unregistered work by a Polish national does not count towards the five years of lawful residence required for permanent residence. Working without registering was not illegal for the worker, and therefore income from unregistered work should be taken into account if one wants to argue self-sufficiency, but needs a comprehensive medical insurance cover for this period.

About the author

Danielle Cohen

As a Human Rights and Immigration lawyer with 20 years’ experience Danielle has assisted many thousands of people and achieved excellence in her profession.

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