What should EU citizens living and working in the United Kingdom do post-Brexit?

Any withdrawal agreement from the European Union may seek to cover the position of UK citizens living in the European Union and the EU citizens living in the United Kingdom. The key issues will be whether they retain their residence rights and their status – currently derived from EU law. Will they be in the same position as other third country nationals under national immigration law? There will of course be the question of the future position of those EU citizens resident in the United Kingdom – for instance, if they: marry a non-EU citizen in future; retire from work or otherwise change their status; enter university in future; or do not yet have permanent residence under EU law.

Article 70 of the Vienna Convention on the law of Treaties guarantees “acquired rights” of individuals in the event of a treaty being terminated. However, since there has never been an Article 50 withdrawal from the European Union, we don’t know how that will be applied in the context of the referendum. Some scholars think that Article 70 will be of limited utility. Some think that minimum protection must stem from the European Court of Human Rights. It is not clear whether Article 70 applies to something like immigration status or whether it only protects people who have acquired a permanent residence status before or as of 23 June 2016.

In the absence of a deal on free movement with the United Kingdom, citizens will no longer be fast tracked when they cross the EU external borders and EU citizens will not be fast tracked when they visit the United Kingdom. In other words, UK citizens will have to get a Schengen visa for free movement within the Schengen space, albeit only for three months. It seems unlikely that Schengen states will place the United Kingdom on the same list of countries whose nationals do require Schengen visas.

What should EU nationals do now?

We advise our clients to take steps to mitigate against the possible effects of Brexit. We advise our clients to apply for residence cards or a document certifying permanent residence in the UK. We tell our clients that these documents are not compulsory for EU nationals living and working in the United Kingdom as they simply confirm rights already held. However, having this card helps the EU national to prove that he or she is exercising their free movement rights in the United Kingdom before any withdrawal from the union.

We are being asked what will happen once the United Kingdom actually leaves the European Union? Will there be transitional arrangements protecting the EU nationals already living and working in the United Kingdom at the time that the withdrawal takes place?

Following the Greenland example – a country which left the European community in 1985 after a national referendum – we can say that transitional provisions were negotiated to allow EU nationals living and working in Greenland to continue to benefit from free movement. Of course we also advise our EU nationals who have lived in the United Kingdom for over five years to consider naturalising as British citizens.

Danielle Cohen is a human rights and immigration lawyer with over 20 years’ experience, based in Camden, London. This article was first published on 4 August 2016 here – for more on Brexit and how it will affect immigration, read other articles in this series or go to www.brexitimmigrationlaw.uk.