Brexit - what can EEA nationals do to protect themselves?

As the UK heads for what could be a “hard” Brexit, there may be steps that EEA nationals currently living in the UK can take to protect their position now.

Current position
The current position for EEA nationals is that they can enter and reside in the UK for an initial period of 3 months.  However, after the first three months, an EEA national must be in the UK under one of the following categories to continue to have a right to reside in the UK under EU law:

  • Worker;
  • Self-employed person;
  • Student;
  • Self-sufficient person; or
  • Job-seeker (though this is only for a limited period).

What can EEA nationals do now to protect their position?
There is no requirement to obtain EEA residence documentation to evidence this right to reside in the UK.  However, in the light of Brexit, we are now recommending that EEA nationals and their family members consider the following action:

  • Those who have resided in the UK for a continuous period of five years (not necessarily the most recent five years) should look at whether they can make an application for a Permanent Residence card.  The right of Permanent Residence is automatically acquired after residing in the UK for five years in one or a combination of the categories above (i.e. worker, self-employed, student etc.); and
  • Those who have not yet resided in the UK for a five year period should consider applying for a Registration Certificate to evidence their right to remain in the UK as a worker, self-employed person, student or self-sufficient person.

The key point is that it is not enough for EEA nationals simply to be residing in the UK in order to build up the five year period to Permanent Residence.  They must be residing in the UK and carrying out one of the permitted activities i.e. working, self-employment, studying or meeting self-sufficiency requirements. 

Common pitfalls for EEA applications

Workers and self-employed persons
Since 2014, the Home Office has been applying a minimum earnings threshold to EEA applications where the applicant is relying on a period of employment or self-employment.  This test is based on the level at which individuals need to make Class 1 National Insurance contributions (currently set at £672 per month for 2016/17).

For those whose earnings from their UK employment or self-employment are below this level, the Home Office is likely to assess that their employment/self-employment in the UK is not ‘genuine and effective’ and therefore that the EEA national does not have a right to reside in the UK.

This is likely to affect those who work part-time or on an irregular basis and/or those in low-paid jobs.

Self-sufficiency and students
A ‘self-sufficient’ person is defined in EU law as a person who has:-

(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and
(ii) comprehensive sickness insurance cover in the United Kingdom.
In practice, this means that EEA nationals can qualify as self-sufficient based on their savings or other funds or even the income of their family member, as long as this income is transferred to either their joint bank account or their own bank account.

The main issue is that many people are unaware of the requirement to also hold ‘comprehensive sickness insurance’.  In practice, this generally means private healthcare insurance which covers the majority of health risks for both the EEA national and any family members.  Indeed, it seems counter-intuitive that EEA nationals, who have free access to the NHS, should need to obtain private healthcare insurance in the UK.

Similarly, for those who are studying in the UK, there is also the requirement to hold comprehensive sickness insurance in the UK.  Again, in our experience, many EEA students have been unaware of this requirement.

What next?
There are most likely hundreds of thousands of EEA nationals and their family members who have been living in the UK for years in the belief that they have been residing under EU law and accumulating time towards Permanent Residence when, in fact, they may not meet the requirements for residing in accordance with EU free movement laws due to a lack of private healthcare insurance or low employment earnings.

It is unclear, at this stage, how generous any Brexit transitional arrangements will be for those in this position.  As such, it is crucial that EEA nationals and their family members review their position and take action now to safeguard their long-term residence in the UK.

Contact our experts for further advice

Kerry Garcia

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