Can EU and EEA nationals be removed from the UK?
‘Can EU nationals be removed from the UK?’
The answer is:YES! But, the answer to the question extremely complex.
New powers introduced on 1 February 2017
On 1 February 2017, the new Immigration (European Economic Area) Regulations 2016 (the Regulations) came into force. These gave the Home Office a number of new powers, including in relation to the removal of EU nationals in certain scenarios. The Home Office published a number of new and updated policy documents shortly after setting out how they may implement their new powers in practice.
We would stress at this early stage that it is, in our view, highly unlikely that the Government would seek to use the new powers against potentially thousands of EU nationals who are living in the UK unless there are very clear and justifiable reasons to do so, principally on the grounds of public policy, public security, public health or because other rights have been misused.
Whilst the position of EU nationals in the UK unfortunately remains the subject of great concern and debate, and will potentially remain unclear until formal negotiations with the EU are well underway, the Government has already stated that:
‘When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected.’
Removing EU nationals from the UK, other than where there are very clear and justifiable legal grounds to do so, would almost certainly breach EU law, which the UK is required to adhere to whilst it is a member of the EU, and also risks significant damage to the UK’s future relationship with the EU. Whilst we can expect to see more posturing, we believe that it is extremely unlikely that the Government would actually take action on a mass scale that would have such damaging consequences.
What is the Home Office actually doing?
Previously the Home Office, when refusing applications for Permanent Residence documents, stated that the applicant would need to leave the UK. This position has already softened and refusal letters now state:
‘If you are in a position to provide the necessary information to support your application for a Document Certifying Permanent Residence, it is open to you to submit a further application if you consider that you have a right to reside in the United Kingdom under European Union Law…..As an EEA national you are not required to leave the United Kingdom as a result of this decision.’
Applicants are invited to make a fresh application and are clearly told that there is no requirement for them to leave the UK as a result of the decision. The same applies to refusals of applications for registration documents.
We have assisted many EU nationals to make successful fresh applications with stronger supporting evidence.
What steps can EU nationals take and what is the time-frame?
The Government has given itself significant new powers in the Regulations, including to investigate if EU nationals have the right of residence in the UK and to remove those who do not.
However, as we have explained above, we do not believe that the Home Office is likely to initiate a mass removal programme. Not only would it risk creating a significant and unwelcome backlash from the EU when delicate formal negotiations are very shortly due to commence, it is also highly doubtful if the Government could even access the data it would need. Any such action also risks ultimately being held to be unlawful, triggering potentially significant compensation claims.
That said, however, we do not recommend that EU nationals who want to continue to live in the UK and who are worried as to whether or not they are complying with the Regulations do nothing. We would recommend that any steps that can be taken now are taken to demonstrate compliance with the Regulations at this point in time.
The exact steps will of course depend on the individual’s particular circumstances. For example, becoming a job seeker, securing employment or setting oneself up as a self-employed person would bring the EU national back under the Regulations and secure their position as of now, when it may have been argued by the Home Office that they were previously outside them. Likewise, acquiring comprehensive sickness insurance, a European Health Insurance Card* or evidence that clearly demonstrates that a reciprocal arrangement is in place would mean that a student or self-sufficient person would no longer risk being considered as being in breach of the Regulations.
*Please note that the application form for a registration document states that an EHIC can only be relied on if the EU national has not come to live permanently in the UK. Whilst the legality of the Home Office’s position is questionable, alternative forms of evidence may be preferable.
In terms of the time-frame, it is unlikely in our view that the Government will use the triggering of Article 50 to bring an end to free movement rights. By the end of yesterday, there were suggestions that Downing Street had rejected rumours of this that had been circulating in the media and it is difficult to see how adopting such an approach would help to ‘properly protect’ the status of UK nationals living in the EU. What is of course highly likely, taking into account the Prime Minister’s position, is that by spring 2019 the UK will have left the EU, so certainly we can expect restrictions on free movement rights in the not too distant future. Given the uncertainty over the time-frame, it would be wise in our view for EU nationals who are concerned about their status to take action sooner rather than later to ensure they are compliant with the Regulations before a cut-off point is enforced.
How we can help
EU law is extremely complex and the Government’s interpretation of it is not always correct. The simple answer to the question ‘Can EU nationals be removed from the UK?’ is ‘Yes’ and this of itself will be of concern to many who are worried about their position.
Therefore, it is advisable to have a cautious and sensible approach is taken and that EU nationals react to what is actually happening in practice and ignore the unhelpful scaremongering that is going on. Many EU nationals who are concerned will be able to take steps that will bring them under the Regulations thereby protecting their status in the UK. It is also logistically impossible and politically unthinkable for the Government to try and initiate removal action against ordinary law-abiding EU nationals who may be unaware of the technical detail of the complex Regulations or who may be temporarily outside their scope. We expect those powers to be used on the grounds of public policy, public security, public health or because other rights have been misused, not in the case of innocent, technical errors.
Brexit: EU nationals express panic after Government alters residency rules
EU citizens living in the UK have expressed panic and confusion after it emerged new regulations brought in by the Government allow the Home Office to remove some of them from the country if they do not have a comprehensive sickness insurance (CSI).
A briefing published revealed that the Home Office acquired controversial new enforcement powers against EU citizens from 1 February.
One of the most contentious issues in the debate around the post-Brexit immigration system has been the cut-off date for the free movement of EU citizens into the UK. Many had hoped that EU nationals residing in the UK would enjoy the same free movement rights they currently possess until we formally leave the EU in 2019.
However, recent headlines suggest that the government may set the deadline for when the EU citizens will no longer have an automatic right to stay in the UK permanently much earlier – possibly on the date of triggering of Article 50, which is expected in mid-March. By setting the cut-off date in the very near term without providing much notice, the government may be attempting to limit a potential surge in last-minute migrants.
It is not clear what the mechanism for entering and working in the UK will be for EU citizens under this plan after the cut-off date. A new visa regime would be a likely outcome according to press reports. It is also probable that such a decision by the UK government would be contested under the EU law, which means that the outcome may still change.
However, in the meantime, it is advisable that EU migrants who came to the UK before March 2017 seek to establish their right to remain before Article 50 is triggered.
Migrants who have lived in the UK for a continuous period of 5 years can apply for a Permanent Residence Card to prove their right to live in the UK. EU migrants who have been living in the UK for a period less than 5 years they can prove they have been exercising their Treaty rights by applying for a Registration Certificate.
There remains a disappointing lack of clarity for the thousands of EU nationals who currently reside in the UK. The rumour mill and “leaks” from those who have their own agendas will continue to fuel speculation about the final position until the matter is ultimately resolved by legislation.
However, EU nationals who satisfy the above criteria would be well advised to establish their status in the UK in the event that some of the leaks and speculation appearing in the press and elsewhere turns out to be correct.
Any EU nationals who are concerned about their position in a post-Brexit UK can contact a member of our immigration team for advice about how best to protect their position.
