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Brexit: acquired rights Contents

Chapter 3: The loss of EU citizenship rights

The consequences of the loss of EU citizenship rights for EU nationals in the UK

24.Professor Douglas-Scott said that the migrant rights of non-EU nationals in the UK,20 as set out in the UK Immigration Rules, were “considerably more restrictive” than the rights of EU nationals in the UK. The loss of EU citizenship rights would, therefore, mean “a potential loss of valuable rights.”21

25.The Immigration Law Practitioners’ Association (ILPA) emphasised how complex the Immigration Rules had become:

“The categories of the Immigration Rules under which a person may apply for settlement (indefinite leave to remain) are closely and narrowly defined with prescriptive criteria, setting out not only what a person must prove in order to qualify for leave but also how they must prove it. As a result, the Immigration Rules are very long, complex and supplemented by a large amount of guidance and case law.”22

26.ILPA also referred us to three judgments of the Court of Appeal that were critical of the complexity of the Immigration Rules. In one, Lord Justice Underhill said:

“I fully recognise that the Immigration Rules, which have to deal with a wide variety of circumstances and may have as regards some issues to make very detailed provision, will never be ‘easy, plain and short’ (to use the language of the law reformers of the Commonwealth period); and it is no doubt unrealistic to hope that every provision will be understandable by lay-people, let alone would-be immigrants. But the aim should be that the Rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.”23

27.In another, Lord Justice Jackson commented: “The rules governing the PBS [Points Based System] are set out in the Immigration Rules and the appendices to those rules. These provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied.”24

Box 2: A rudimentary guide to indefinite leave to remain

  • For a person to qualify for indefinite leave to remain, otherwise called settlement, the Immigration Rules must first provide for a route to settlement in the category in which they are applying. There are several “tiers” of visa category, each with sub-categories (the Points Based System). The rules in each category identify whether it leads to indefinite leave to enter or remain. For example, Tier 1 (Investor) and Tier 1 (Entrepreneur), along with Tier 2 (General) visa holders would normally qualify to apply for indefinite leave, while student and visitor visa holders would not.
  • The requirements for settlement under different visa categories usually include a qualification period, setting out the length of time a person must have had leave to enter or remain before becoming eligible to apply for settlement in that category. The length of time during which a person must have held leave to enter or remain before qualifying for settlement varies according to the category. For example, Tier 1 (Investor) and Tier 1 (Entrepreneur) visa holders are normally eligible for “accelerated settlement”.
  • A person may qualify for settlement on the grounds of long residence following ten years lawful and continuous residence in the UK. This gives effect to the Council of Europe Convention on Establishment which protects those who have been lawfully resident in a Member State for ten years or more.
  • Absences from the UK that render a person ineligible for settlement vary according to visa category.
  • Most routes to settlement require that the applicant show sufficient knowledge of life in the UK and of the English language. The knowledge of life in the UK requirement may be met by sitting the Life in the UK test or through a combination of English language and citizenship classes under very specific requirements. The language requirement may be met through being a national of certain English-speaking countries, passing an approved test in speaking and listening in English at a particular level or holding a recognised academic qualification taught in English. Settlement under some categories of the rules does not include this requirement, for example those made for settlement as a refugee.
  • A change to Home Office guidance in 2016 means that a person may also be refused settlement on character grounds, if they have been in breach of immigration laws at some time in the past.
  • In most cases, the application must be made on a mandatory form and a fee must be paid. The fee for an application for settlement made within the UK is currently £1,875 for a single applicant, with a further £1,875 payable for each dependant included in the application. A family of four would therefore pay £7,500 for the application. There are additional fees for taking the relevant Life in the UK or English language tests.
  • A grant of settlement confers legal permission to live permanently in the UK without being subject to immigration control. Settlement status also confers a right to work, study and access State benefits on the same terms as UK citizens. A grant of settlement is often the pre-cursor to an application for UK citizenship.

Source: Supplementary written evidence from ILPA (AQR0015); and the UK Visa Bureau: http://www.visabureau.com/uk/default.aspx [accessed 30 November 2016]

The consequences of the loss of EU citizenship rights for UK nationals in EU Member States

28.The UK would become a ‘third country’ for the purposes of EU law on withdrawal from the EU. Whereas EU nationals in the UK would be subject to national immigration law alone, UK nationals in other EU Member States would be subject to common EU immigration rules for ‘third-country nationals’25 (other than in Denmark and Ireland, which have opted out of them)26 as well as the national immigration law of each Member State.

Box 3: EU rules on third-country nationals

  • Third-country nationals may face visa requirements for entry into EU Member States, including for short-term trips and holidays.27
  • Third-country nationals who seek to reside for longer periods in EU Member States would be subject to EU rules on managed migration, including quotas and EU-preference rules on labour migration. Highly skilled UK professionals, for example, would be required to apply for a Blue Card (the EU’s work and residence permit for highly-skilled non-EU nationals),28 or to fall within the scope of intra-corporate transfers,29 or to fall within criteria for scientific research.30 These regimes are more restrictive than EU rights on free movement. There are few rules on low skilled workers, other than seasonal workers,31 and on the self-employed, so the applicable rules would depend on the domestic immigration law of each Member State.
  • Third-country national students wishing to study in the EU would not be granted equal treatment with EU nationals in relation to tuition fees and the right to undertake part-time work.32
  • Third-country nationals who had been resident in an EU Member State for more than five years would be able to apply for the EU long-term residency status.33
  • Third-country nationals legally resident in an EU Member State wishing for their families to join them would have to comply with stricter EU-wide rules on family reunion.34
  • The EU Returns Directive35 contains provisions for the detention, expulsion and exclusion of migrants irregularly present in the EU. This could apply to all UK nationals present in an EU Member States upon the UK’s withdrawal in the event of a non-negotiated Brexit.36

Source: Brexit: The Immediate Consequences, Richard Gordon QC and Rowena Moffat, The Constitution Society, 2016, pp 53–56

29.Professor Douglas-Scott explained that UK nationals in other EU Member States, on becoming third-country nationals, would experience a considerable reduction in the rights they enjoyed as EU citizens:

“What about those ‘expat’ UK citizens who have resided long-term (i.e. more than 5 years) in an EU State? If they were no longer EU citizens, they could apply for long-term resident status (as 3rd country nationals) under EU law. But as compared to obtaining permanent residence status as an EU citizen, this carries fewer benefits, and British citizens would often need to satisfy ‘integration’ rules, such a requirement to speak the language of the host country, before getting such status, and would be subject to far stricter family reunion rules than at present. Those UK citizens who wished to remain working in an EU State, but did not yet benefit from long-term resident status could face quotas and discrimination against them as non-EU citizens.”37

30.Professor Catherine Barnard, Professor of European Union Law and Employment Law, Cambridge University, said “probably the most significant” of the third-country national rights was the Blue Card Directive for highly skilled migrants, but even this had not been much used:

“That was basically meant to be a response to the US’s green card scheme, but in fact it has been a pretty poor programme; the number of people taking advantage of those rights is only around 15,000 because they sit rather uncomfortably with the rights laid down by domestic law, and usually people find that the domestic regime is more favourable than the EU regime so they go down the domestic route instead.”38

Conclusions

31.In the absence of a negotiated settlement, the consequences of the loss of EU citizenship rights for EU nationals in the UK, and for UK nationals in other EU Member States, will be severe.

32.EU nationals in the UK will be subject to national immigration rules, which restrict the rights of migrants far more than EU citizenship law, and which have been described as Byzantine in their complexity by the Court of Appeal.

33.While UK nationals in EU Member States will also be subject to the national immigration law of their host State, they will enjoy additional protection as ‘third-country nationals’ under EU immigration law (except in Denmark and Ireland). The additional protection is, however, a considerable reduction on the migrant rights afforded to EU citizens.

20 EEA nationals—those from Norway, Iceland and Liechtenstein—also benefit from EU citizenship rights.

21 Written evidence from Professor Sionaidh Douglas-Scott (AQR0001)

22 Supplementary written evidence from ILPA (AQR0015)

23 Singh v Secretary of State for the Home Department [2015] EWCA Civ 74: http://www.bailii.org/ew/cases/EWCA/Civ/2015/74.html; supplementary written evidence from ILPA (AQR0015)

24 Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568; supplementary written evidence from ILPA (AQR0015)

25 Article 77 TFEU provides that the EU is competent to adopt rules relating to the absence of internal order controls, the management of external borders and short stay visa policy. Article 79 TFEU provides that the EU may adopt rules relating to the conditions of entry and residence, the definition of the rights of third country nationals residing legally, illegal immigration and unauthorised residence, and combating human trafficking.

26 The UK has also opted out of them.

27 Regulation 562/2006/EU of 15 March 2006 on the Schengen Borders Code, OJ L 105 (13 April 2006), pp 1–32 (and associated implementation secondary legislation); Regulation 539/2001/EC of 15 March 2001 listing the third countries whose nationals must be in possession of visas and those whose nationals are exempt from that requirement, OJ L 081 (21 March 2001), pp 0001–0007, and Regulation 810/2009/EC of 13 July 2009 establishing an EU code on visas (and associated implementation directives), OJ L 243 (15 September 2009), pp 1–58

28 Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, OJ L 155 (18 June 2009), pp 17–29)

29 Council Directive 2014/66/EU of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, OJ L 157 (27 May 2014), pp 1–22

30 Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting Third Country Nationals for the purposes of scientific research, OJ L 289 (3 November 2005), pp 15–22

31 Council Directive 2014/36/EU of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers, OJ L 94 (28 March 2014), pp 375–390

32 Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ L 375 (23 December 2004), pp 12–18

33 Council Directive 2003/109/EC of 25 November 2003 concerning the status of Third Country Nationals who are long term residents, OJ L 016 (23 January 2004), pp 0044–0053

34 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251 (3 October 2003), pp 0012–0018

35 Council Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348 (24 December 2008), pp 98–107

36 It provides for immigration detention for up to 6 months, or 18 months in the event of complications with the removal process.

37 Written evidence from Professor Sionaidh Douglas-Scott (AQR0001)

38 Q 34



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