Since Friday morning, I have been inundated with calls from concerned individuals wondering what impact the decision to leave the EU will have on their legal status to remain in the UK. I have spoken to EU nationals and their non- EU family members and to those who have pending cases with the Home Office. I have been asked questions like, “Will I be forced to leave the UK? ; Will my non EU partner be able to apply for some sort of residency in the UK or is too late?
The decision to leave the EU has created widespread uncertainty and I feel it is important to offer some clarity on this developing topic.
The key point to note is the referendum decision last week does not of itself trigger a withdrawal of the UK from the EU. The UK is still part of the EU and remains subject to its laws. The process of withdrawing from the EU requires the UK to invoke Article 50 of the Treaty on European Union whereby the UK will give formal notice to the European Council of its intention to withdraw from the EU.
Article 50 reads as follows:
“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. 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.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”
Article 50 allows a 2 year period for the UK to negotiate and finalise its terms of departure. This period can be extended if the European Council and member states unanimously agree to do so.
In my view, it is unlikely that there will be any drastic changes to the status of the 3 million EU nationals who are already in the UK or to that of their family members.
It is probable that there will be a transitionary period in place allowing all those who are in the UK before the official departure date to continue residing here. New laws may be introduced permitting these individuals the possibility of regularising their legal status in the UK.
During the 2 year period there are certain measures that can be taken by EU nationals or their non EU family members who are already in the UK
As an EU National or a non EU family member an application can be made to the Home Office to confirm one’s formal residency in the UK. For example, those who have resided in the UK for five years exercising treaty rights can apply for permanent residency.
Over the upcoming months, things will doubtless become clearer. There is even talk of a second referendum although David Cameron has discounted this.
One thing is certain: as things stand there are no immediate legal consequences of the UK’s decision to leave the EU. It will take some time and much effort before it actually happens. Watch this space.
For immigration law enquiries please contact Adeeb Chowdhry on Adeeb.Chowdhry@dwfmbeckman.com or by telephone 020 7408 8888