Permanent Residence Card after Brexit

Since the EU Referendum in the UK, there are many questions that still wait for an answer. Some of the biggest questions, with regard to immigration, come from European Union citizens living in the United Kingdom.

Before the referendum, their status was clear and there was little confusion with regard to their rights. There was simply no document requirement to confirm the residence in the United Kingdom. This was a situation of stability and predictability. As a consequence, many European citizens did not carefully consider the full implications of their immigration status. However, the situation has changed significantly. Now, European citizens pay more attention to their status. There are a number of various factors that determined this change, which include the political rhetoric presented by the media and the mixed signals and information about the Brexit negotiations. In this uncertain climate, many European citizens who wish to remain in the United Kingdom after Brexit considered that their best option would be to get the residence permit. Obviously, not all of them fulfilled the requirements to do so, but the individuals that do are faced with a difficult decision that may have consequences that they cannot currently take into account.

Firstly, European citizens currently living in the United Kingdom fall into many categories. This means that each and every situation needs to be considered on a case by case basis. However, for the individuals who already took the important step of getting their permanent residence document, the Home Office took an all encompassing approach by stating on its website that the permanent residence document will not be valid after exiting the European Union. Whilst at a first glance this approach is clear and simple, it raises issues of uncertainty, on the one hand for the European citizens who are considering applying for their permanent residence document and on the other hand for the European citizens who already have this document. On the one hand, for the former, this short statement gives rise to more questions than answers, encouraging them to think twice if the effort of applying for the permanent residence document is worth it. Mainly, the statement represents a disincentive for this first category and may be an attempt of the Home Office to minimise the number of applicants before Brexit. However, the statement does not have the automatic effect of European citizens suddenly stopping from applying for their permanent residence document. On the other hand, for the latter, it raises questions of what do they need to do, in order to maintain their immigration status.

Secondly, in order to fully understand the approach presented by the Home Office, one has to have a better understanding the effects of the European Union Withdrawal Bill on the permanent residence document. First of all, this document is issued by the Secretary of State through the power conferred to them through a British statutory instrument (Regulation 19 of the Immigration (European Economic Area) Regulations 2016) meaning that this power does not flow from the European law. Second of all, Clause 2 of the European Union Withdrawal Bill is clear that British legislation derived from the European Union will continue to have effect after exit day.

EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.

Therefore, it follows that after the exit day, the permanent residence document will not automatically become invalid. However, this may be the case if another piece of legislation extinguishing the permanent residence cards is enacted. Moreover, it should be taken into account that the topic of residence of European citizens in the United Kingdom and British citizens in European Union Member States is an important part of the negotiations between the two.

This means that such changes are a possibility and one that is almost impossible to predict. One would simply have to wait and see what the outcome of the negotiations is. Furthermore, the full effects of these negotiations on the European Union Withdrawal Bill are still to be determined. There is a possibility, that Clause 2 mentioned above may be amended, but there is also a greater possibility of the clause being enacted as it is.

Lastly, on the premise of the above, one may consider the significant level of uncertainty arising from the negotiations and the enactment of the European Union Withdrawal Bill. That being said, the British government has stated that for all those who have obtained their permanent residence card, there will be a streamlined process.

For those who have already obtained a certificate of their permanent residence, we will seek to make sure that the application process for settled status is as streamlined as possible.

This may mean that they will be part of a special scheme for obtaining the settled status. If this will be the case, such a scheme will be of great benefit in obtaining the settled status for those who already have the permanent residence card. Obviously, such a scheme is still to be implemented and the details, the level of streamlining are yet to be determined. Nevertheless, it represents a good possibility to have an easier process in obtaining the settled status.

In conclusion, there are many questions with regard to the immigration status of the European Union citizens in the United Kingdom that await an answer, there is a level of uncertainty and unpredictability.  That being said, it is a safer option to apply and get the permanent residence card before Brexit.