British Citizens and EU Member State Immigration Policy
Preparing for a “no-deal” Brexit
On Tuesday 15 January 2019 Members of Parliament (MPs) rejected the Withdrawal Agreement negotiated between the British government and the European Union.
British nationals and their family members who are currently working and living in EU member states face immigration uncertainty if the UK leaves the EU on 29th March 2019 without a deal in place.
EU member states are still assuming an orderly withdrawal of the UK from the EU. However, with no deal in sight, what are the possible consequences for British citizens abroad? Will the legal status of the affected British citizens change and will those changes be permanent?
In the absence of a binding Withdrawal Agreement including a chapter on Citizen’s Rights, each individual member state will apply its own laws. Listed below is a brief introduction to the policies and processes that a range of EU countries are likely to put in place in the event of “no-deal”.
The Austrian authorities have identified various areas that shall be affected in the event of a no deal Brexit; in particular residence, social security, transport and customs.
As a result, the competent authorities have begun to review proposed adjustments to what they consider to be ambiguous legalities that could arise as a result of a disorderly withdrawal of the UK from the EU. The first review procedures were initiated on 16 January 2019.
The UK has pledged that Austrian nationals present in the UK at the time of departure from the EU, can continue to live and work in the UK. The Federal Government of Austria will propose a corresponding solution of reciprocity for British nationals living in Austria.
Belgium has prepared “emergency legislation” in relation to the no deal possibility.
On 18 January 2019 the Belgian Federal Council of Ministers approved a preliminary draft “no deal Brexit” bill.
Based on reciprocity, the right of UK citizens and their families to remain in Belgium will be regulated.
Although the Bulgarian Government has not released details of their proposed immigration strategies, Ekaterina Zaharieva, the Foreign Minister of Bulgaria, advised journalists in Parliament on 18 January 2019 that regardless of the outcome, the Bulgarian government is “prepared for all possible options”.
The Croatian Ministry of Interior (MUP) is aware that steps need to be taken to address the possibility of the UK leaving the EU with no agreed immigration procedures in place. The MUP aims to develop an immigration model that will protect those British citizens already in Croatia.
The MUP is proposing to apply “special rules” to British citizens, who, on 29 March 2019 have registered and hold a valid temporary residence permit, which will allow them to maintain the right of residence in Croatia after the UK leaves the EU.
Cyprus is making plans for a “disorderly” Brexit and is currently preparing legislative changes.
Government Spokesman, Prodromos Prodromou recently advised that every step would be taken to secure the status of British citizens living and working in Cyprus, especially those within the British bases. Foreign Minister Nicos Christodoulides proposes for an “interim solution” to be adopted and also wishes to ensure that the rights of Cypriots who work and reside on British based are protected.
Prodromos Prodromou advised “Ministers have long been instructed to record all issues that will arise if there is no agreement. The Ministry of Foreign Affairs has a general strategic plan and, of course, all provisions and all possible measures will be taken to mitigate the consequences.”
It is therefore proposed that British citizens currently residing in Cyprus will be able to remain in case of a no-deal. However, “nothing is agreed until everything is agreed”.
The Czech Ministry of Interior produced a draft Act in preparation of a no-deal Brexit, which was approved by the government on 7 January 2019.
Should the UK withdraw from the EU without an agreement in place, those affected citizens already residing in the Czech Republic will be exempt from the current rules associated to third-country nationals until 31 December 2020, allowing for a 21 month exemption period. The Czech Republic is however looking to secure a reciprocal agreement.
Should an agreement on the UK’s withdrawal from the EU under Article 50 (2) of the Treaty on European Union be concluded before 31 December 2020, the law will cease to apply.
To effectively and efficiently manage a no deal scenario, various measures have been initiated by the Danish government.
Regardless, in case of a no deal, British citizens will be considered third country nationals, and Danish national rules applicable to third country nations will apply. However, the Danish government is conscious that British citizens who chose to live and work in Denmark prior to 29 March 2019, did so under their capacity as EU citizens, and as such, wishes to provide certainty to those Brits already present.
To secure proof of residence in Denmark, the Danish government is encouraging British citizens to ensure they hold an EU registration certificate or an EU residence card. Those who have not yet secured either should submit their applications for such documents before 29 March 2019.
It has been proposed that from 29 March 2019, a temporary transitional scheme will apply, until a permanent solution has been agreed upon. Under the scheme British citizens residing in Denmark will be able to continue living and working in Denmark as per current legislation.
Should it be necessary to implement such a scheme, the legislative proposal is scheduled to be presented to the necessary parties towards the end of February 2019.
The Estonian Ministry of Foreign Affairs has advised that British citizens will be able to remain and reside in Estonia in case of a no deal, and has recommended to other Member States that a “generous approach “be applied to British Citizens already living in the EU.
Iikka Salmi, Finland’s Interior Ministry Permanent Secretary has advised that the Finnish Government is currently investigating the possibility of introducing “special arrangements”, which will enable British citizens to travel and return to Finland should the UK leave the EU with no-deal in place.
As Finland is to conduct a general election on 14 April 2019, the Government is proposing “fast-track new legislation”, relating to securing the residency rights of British citizens currently in Finland.
France has announced it will activate its draft bill which outlines the position of British nationals in the event of no deal. However, much of the bill relies on how French citizens in the UK will be treated so that reciprocal arrangements can be made.
The draft bill currently states that British citizens will become third-country nationals and will therefore require a residence permit to enter the French territory and evidence their right to stay there. As such, the Europe Minister in France has advocated the government’s intention to pass a decree that will ensure that British citizens can remain in France without incurring an irregular immigration status. In any event, all British citizens in France are encouraged to apply for the Carte de Séjour and it seems likely that this will be converted into the appropriate permit post-Brexit. This will also be a requirement in the event of no deal should an individual wish to stay in France for more than three months.
British citizens employed in France may be required to obtain a work permit in order to avoid their employers becoming criminally liable for employing foreign nationals.
British citizens will be considered third-country nationals, although resident British citizens will not be required to leave Germany.
A transitional approach is to be adopted which would allow British citizens to submit an immigration application to the competent foreigner’s office in Germany (the type and category of which is to be decided). The period will initially run for 3 months from 29 March 2019 until 29 June 2019, which is likely to be extendable.
During this transitional period, and while an immigration application is decided upon, British citizens and their family members, who have been entitled to the freedom of movement under the EU Freedom of Movement Act, will be able to continue to live and work in Germany without a residence or work permit.
To remain and reside in Germany after the 3 month transitional period, British citizens will need a residence permit. To work, approval from the German employment agency is likely to be required.
In December 2018, the head of the foreigner’s registration office in Berlin, Engelhard Mazanke, announced that it was not yet clear what kind of residence status British citizens would receive or what documents would be required, but was confident that the office in Berlin could offer a good and flexible service and process applications in around 8 weeks.
It is already possible for British citizens in Berlin to register their details on line ahead of 29 March. Other foreigner´s offices in Germany are already preparing for application procedures and may well be in a positon to offer assistance before the date of departure from the EU.
At present, no legislation is in place in the case of a no deal Brexit.
There is currently no agreement in place, however the relevant authorities are scheduled to pass legislation in February 2019, which may result in the implementation of a unique agreement that would highlight the importance of British citizens in Hungary to the Hungarian government, which would largely preserve the rights of UK citizens in Hungary in the event of a no-deal Brexit.
Ireland and the Common Travel Area
British citizens who currently reside in the Common Travel Area (CTA) will not be affected by the UK’s exit from the EU.
The ability to travel freely and reside in the CTA after 29 March 2019 will remain unchanged.
The CTA provides for the free movement of British and Irish citizens between the UK, Ireland, the Channel Islands and the Isle of Man.
As the CTA was formed before the UK and Ireland became members of the EU, reciprocal rights for Irish and UK citizens apply.
Therefore, British and Irish nationals will not be required to apply for any form of settled status, work or residence permit, post Brexit, as the rights to work, to study and to access social security and public services will be preserved on a reciprocal basis for UK and Irish nationals.
Travel between the UK and Ireland will also not be affected. This includes movement across the land border between Northern Ireland.
Italy has confirmed it is working on legislation to take effect by 29 March 2019 which will allow legal residence status to continue for those British citizens living in Italy on a regular basis.
Provided that British citizens are registered with their local registry office at their town hall, they will be granted rights and sufficient time to apply for long term residence status. Registration with the town hall is encouraged prior to 29 March 2019.
Further to an interview with the Latvian Foreign Minister Edgars Rinkēvičs on 21 January, the Baltic News Network published an article on 23 January 2019 detailing that Latvia and the UK had reached an agreement, which would ensure no change to the status of either countries citizens. However, an official statement from the Government is yet to be published.
The Migration Department of Lithuania announced on 21 January 2019 that “all UK citizens will be able to stay in Lithuania in case of a no-deal Brexit.
However, post 29 March 2019 those British citizens currently residing in Lithuania, who have not completed the already established residence registration process, will likely face difficulties.
British citizens who wish to reside in Lithuania after 29 March 2019 and whose current residency documents will expire before 2020, are “invited” to apply under the EU citizens and their family member’s scheme for temporary or permanent residence. Applications for those who have not already registered or applied for residence should do so before 29 March 2019.
There are currently no laws or regulations in place, however, on 16 January 2019, the commission of foreign affairs of the Luxembourg parliament held a meeting with the Luxembourg Minister of Foreign Affairs, Mr Jean Asselborn.
Mr Asselborn assured members of the commission that the Luxembourg government is currently working to identify solutions, with the aim of minimising any detrimental impact the no deal scenario may have on UK residents in Luxembourg.
Since the meeting Prime Minister Xavier Bettel and Foreign Minister Jean Asselborn announced a proposal, whereby British Citizens living in Luxembourg will be given a period of 1 year to secure permanent residence. Thereafter they will be considered third country nationals.
In the event of a no-deal Brexit, the Maltese Government recently announced that all British citizens working and residing in Malta up until 29 March 2019 will need to apply for a Residence Permit, which will be free of charge, valid for 10 years and renewable.
A permit will also be available to British citizens who wish to enter for work and residence purposes after 29 March, although a residence fee will apply.
The Maltese Prime Minister Joseph Muscat said recently that “The new residence document will reflect the fact that UK nationals are no longer EU citizens, but a new ‘special’ category of EU nationals who have moved to Malta and have acquired rights which will not change.”
The Netherlands has confirmed a transitional period from 29 March 2019 to 1 July 2020 will be applied and it is stated that British citizens will keep their rights of residence and employment, even in the case of a no deal.
To assist British citizens in evidencing their legal residence in the Netherlands until 1 July 2020, the Immigration and Naturalisation Service (‘IND’) will issue temporary residence permits in the form of a letter. The letter will indicate that even in the event of a no deal, UK citizens will be able to continue residing in the Netherlands and will receive a residence permit.
During the transitional period, the IND will issue a further letter inviting British citizens to apply for a residence permit. Details of the application process and document requirements will be included. The IND will endeavor to send the letters by 1 April 2020.
If the British citizen has not previously registered with the Personal Records Database (‘BRP’) in their municipality, they are not likely to receive the invitation letter. However, in order to apply for the permit, the individual must prove that they were resident in the Netherlands prior to 29 March 2019 and therefore they must be registered with the BRP.
Should a British citizen already hold permanent residence status, the IND will automatically change their status to issue them a national permanent residence permit. This does not require an application to be filed or any fees to be paid.
On 11 January 2019, the Polish government published a draft bill which outlined the legal framework for regularising the residence of British citizens in Poland.
Should a no deal situation occur, Poland proposes a 12 month grace period, during which time British citizens will be able to apply for a temporary residence permit confirming their right to remain or a permanent residence permit if they have been resident for five years. Should the bill be passed, the process and document requirements will be regulated by the Ministry of Internal Affairs and Administration.
There is currently no agreement in place, however it is proposed for the Portuguese government to adopt a favourable approach based on the strength of the British – Portuguese alliance, and thus British citizens living and working in Portugal should be given access to suitable resources as and when any negotiations are initiated.
The Serviço de Estrangeiros e Fronteiras (SEF), the police service integrated into the Ministry of Internal Affairs, whose mission is to enforce immigration and asylum regulations in Portugal has provided on its website a document concerning a series of preparatory and contingency measures that were proposed by the Portuguese Government on 11 January 2019.
It is proposed that should no agreed implementation period be decided upon, British citizens who are resident in Portugal by 29 March 2019 would have until 31 December 2020 to apply for a registration certificate.
Only those eligible British citizens who are resident in Portugal by 29 March 2019 will be able to be acquire the right of permanent residence.
As part of the British government’s “outreach programme”, the British Embassy in Lisbon and the British Vice Consulate in Portimão, have and will continue to hold meetings across Portugal and assist British citizens with their concerns.
Whilst the British government continues to negotiate Brexit, and particularly as there is a possibility of Parliament not passing a Withdrawal Agreement, the Slovenian Government will constructively seek to identify areas of concern, with the aim of reducing any negative impact associated with a potential no-deal scenario, by adopting and introducing “urgent legislation”.
Providing a reciprocal agreement is in place, Slovenia will look favourably to regularizing the stay of those already established British citizens in Slovenia.
Similar to Slovenia, providing a reciprocal agreement is in place, Slovakia will look to protect the rights of British citizens already residing in Slovakia.
Legislative changes, and areas of concern in case of a no deal, are expected to be presented by the Government, to the necessary parties by 15 February 2019.
On Friday 11 January 2019, the Spanish Council of Ministers approved a “Report on the Contingency Plan in the event of a Brexit without a UK-EU Deal”.
The contingency plan includes but is not restricted to the following areas:
The government intends to utilise Law from the Royal Decree, whereby amending current legislation and adopting new regulations in order to address the situation.
Ensure the relevant immigration authorities and the Spanish Administration has adequate materials to facilitate immigration related matters in view of a “hard” Brexit.
Ensure immigration regulations and procedures are readily available to all concerned parties, via the Presidency’s web page http://www.lamoncloa.gob.es/Paginas/index.aspx
Although there is currently no agreement in place, the Spanish authorities propose to allow British citizens to change their immigration status in country, from that of an EU immigration category to that of a national Immigration scheme, which would likely be that which currently applies to third-country nationals.
There is currently no agreement in place however there is speculation that UK nationals will be granted 1 years grace to regularise their status in Sweden.
Although Switzerland is not a member of the EU, the right of EU citizens to reside and work in Switzerland is governed by the EU, under an agreement known as the bilateral Agreement on the Free Movement of Persons (AFMP).
Once the UK leaves the EU, the AFMP will cease to apply between Switzerland and the UK.
However, in December 2018, the Swiss Federal Counsel approved a draft bilateral agreement with the UK, on the condition that the existing rights of Swiss and British nationals already residing in each other’s countries will be guaranteed when the UK leaves the EU.
The bilateral agreement has not yet been approved by the Swiss parliament. However, on 16 January 2019, the Committee on Foreign Affairs agreed that the bilateral agreement be applied provisionally.
It is expected that the Committee on Foreign Affairs will also shortly approve the bilateral agreement and thereafter the Swiss Federal Council (government) will sign the bilateral agreement. The next step is for the agreement to be approved by the Swiss parliament.
In the event of a “no deal” Brexit, the bilateral agreement will provisionally apply from 30 March 2019.
Under the bilateral agreement, the residence rights that British citizens acquired under the AFMP (i.e. up until 29 March 2019) will be protected and will be valid indefinitely.
Up until 29 March 2019, those UK nationals in Switzerland already holding a short- or long-stay residence permit, who will have therefore registered in a commune, will not need to take any action.
The same applies to persons with an EU/EFTA cross-border commuter permit.
Whilst the British government continues to negotiate Brexit, and with the possibility of Parliament not ratifying a Withdrawal Agreement, the Foreign and Commonwealth office advises British citizens to:
- Ensure they are correctly registered in their residential EU member state;
- Read the document UK nationals in the EU: essential information guide;
- Follow their local British Embassy on Facebook or Twitter;
- Sign up for email alerts on living in the EU member state;
Attend outreach meetings, available across many of the EU countries, arranged by the British Embassy;A number of EU Member States have already given political assurances to UK Nationals about their residency rights, yet ultimately the ability to continue living and working in an EU country after Brexit depends on the EU and its individual Member States, and whether they reciprocate any agreement the UK has to offer.
Magrath Sheldrick LLP will continue to keep clients and professional colleagues updated on Brexit developments over the coming days.