Following the UK referendum’s outcome, Duncan Lewis Head of Business Development Geoffrey Yeung explains how the application of the Art. 50 of the Lisbon Treaty will influence the Free Movement of People within the EU.
When David Cameron signalled his intention to resign on the morning of the 24th June, he said that he would leave the task of triggering Article 50 to his successor. The decision about when to trigger Article 50 and start the formal process of leaving the EU will be for the new Prime Minister, Mrs Theresa May. The UK remains a member of the EU throughout this process, and until Article 50 negotiations have concluded. Mrs May has previously confirmed that she will not trigger Article 50 before the end of this year.
The EU Treaties will cease to apply to the UK on the date of the effect of the withdrawal agreement, or by default, should negotiations for the withdrawal agreement fail, two years after the invocation of Art. 50 (unless the European Council and the Member States decide unanimously to extend the two year negotiation period).Once Art.50 has been triggered, we have formally notified the European Council of our intention to leave the EU. Under Article 50 the process of exiting the EU should take 2 years unless it is otherwise agreed to extend this period. The Treaties which currently govern the UK will cease to apply at the time of Article 50 being triggered unless otherwise agreed.
What the members of Bar council in the UK think
According to members of Bar council in the UK, the result of the EU referendum must be acknowledged. Due to the advisory nature of the referendum, the European Referendum Act does not make it legally binding. For this reason, in order to trigger Article 50 of the Lisbon Treaty, there must be primary legislation. The Parliamentary vote should take place with a greater understanding as to the economic consequences of Brexit, as businesses and investors in the UK start to react to the outcome of the referendum.
As per a letter sent by the Bar council to the House Commons in July 2016, the Bar council’s opinion is based on an objective understanding as to the benefits, costs and risks of triggering Article 50. First of all, there is evidence that the result of the referendum was influenced by misrepresentations of fact and promises that could not be delivered. Since the result was only narrowly in favour of Brexit, it cannot be discounted that the misrepresentations and promises were a decisive or contributory factor in the result.
The referendum did not set a threshold necessary to leave the EU, commonly adopted in polls of national importance, e.g. 60% of those voting or 40% of the electorate. This is presumably because the result was only advisory.Also, they point out how the outcome of the exit process will affect a generation of people who were not old enough to vote in the referendum and that the positions of Scotland, Northern Ireland, Gibraltar and London must be taken into account, since their populations did not vote to leave the EU.
The referendum did not concern the negotiating position of the UK following the triggering of Article 50, nor the possibility that no agreement could be reached within the stipulated two year period for negotiation, nor the emerging reality that the Article 50 negotiations will concern only the manner of exit from the EU and not future economic relationships. All of these matters need to be fully explored and understood prior to the Parliamentary vote.
So, what does all of this mean for the fundamental Free Movement of People within the EU?
Prior to becoming Prime Minister, Theresa May has been reluctant to give a guarantee on the rights of EU nationals living in the UK. However, in a statement released on 12th July, the government recognises and values the important contribution made by EU and other non-UK citizens who work, study and live in the UK.The statement also confirms there would be no change to the right of EU nationals to reside in the UK and therefore no change to the circumstances in which someone could be removed from the UK.
As was the case before the EU referendum, EU nationals can only be removed from the UK if they are considered to pose a genuine, present and sufficiently serious threat to the public, if they are not lawfully resident or are abusing their free movement rights.At the moment there has been no change to the free movement of people between EU member states.
This means that until Article 50 has been triggered, there is no change to the Regulations which allow EU nationals to reside in the UK and vice versa with UK nationals residing in the EU. EU nationals who have lived continuously and lawfully in the UK for at least 5 years automatically have a permanent right to reside. This means that they have a right to live in the UK permanently, in accordance with EU law. There is no requirement to register for documentation to confirm this status.
EU nationals who have lived continuously and lawfully in the UK for at least 6 years are eligible to apply for British citizenship if they would like to do so. EU nationals who have been living in the UK for less than five years continue to have a right to reside in the UK in accordance with EU law. EU nationals do not need to register for any documentation in order to enjoy their free movement rights and responsibilities. For those that decide to apply for a registration certificate, there has been no change to government policy or processes. Applications will continue to be processed as usual.
However, it is currently very unclear what effect the UK’s vote will have on rights of EU nationals living in EU and retrospectively what effect it may have on British citizens in other parts of the EU. For further information, feel free to contact one of our specialist Immigration Lawyers who are experts in handling straight forward and complicated EU nationality matters.
Our team of immigration solicitors in London and the UK will be happy to provide you with an initial free consultation over the telephone.
For further information, contact one of our members of our Private Immigration Team, who will be glad to assist you.
About the author – Geoffrey Yeung
Geoffrey is Head of Business Development at Duncan Lewis Solicitors and specialises in UK immigration legal matters. He has extensive experience in all UK immigration categories, specialising in Tier 1 (Investor), Tier 1 (Entrepreneur) and all aspects of Tier 2 under the Points-based System. He is particularly adept at assisting companies and educational institutions with licences and general compliance issues under Tier 2, Tier 4 and Tier 5 of the Immigration Rules. He also has substantial experience with challenging the UK Home Office with respect to UK Immigration Visa Refusals by way of Judicial Review.