Immigration

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Immigration was one of the main concerns which sparked Brexit. The UK voted to take back control of its borders and wants to end free circulation and establishment between the UK and the EU27 member states.

The current, pre-Brexit situation for UK nationals and EU nationals is freedom of movement for EU and UK citizens under Art. 45 TFEU, Directive 2004/38/EC. This gives EU citizens and their family members the right to move and reside freely within the territory of the member states. This means:

  • no visa requirement.
  • no work authorisation requirement.
  • no residency permit requirement.
  • residency permits for third-country dependents.
  • freedom of circulation and establishment under sufficiency condition.

In practical terms, having a valid ID card or passport entitles EU nationals to enter the territory of another member state. For long stays, – more than 3 months – they may also reside in an EU member state subject to certain conditions and limitations (personal resources, healthcare insurance provisions and provided they are not a burden on the social security system) according to their status in the host country. After five years’ continuous residence, EU nationals have the option of obtaining permanent residence status.

After Brexit, both UK nationals in EU member states and EU nationals in the UK will be treated as third-country nationals. Borders will be back between the UK and the EU.

Key contacts

Contact
Haiyan Cai
Legal adviser/Head of immigration
T +33 1 47 38 56 49

Post-Brexit

For short stays, a post-Brexit solution has been found. Deal or no-deal, the European Commission on 4 April 2019 unilaterally adopted the visa-free system for UK travellers. We are still waiting for the formal text. One note of caution on the visa-free programme: as the length and purpose of stay is limited, if travelling for work, all the appropriate documents which may be required by member states must be prepared.

For long stays – more than 90 days out of 180 days – rules will change depending on deal or no-deal. The EC has consistently made clear that protecting the residence and work rights of UK people living in the EU is a priority, and that member states should take a generous approach to UK citizens’ rights.

The draft withdrawal agreement grants a transition period until 31 December 2020, during which the rights of UK nationals will be ensured under current EU legislation. The mobility part of the draft withdrawal agreement governs the conditions of entry and exit (Article 14), the right of permanent residence after a continuous five-year period (Article 15), the accumulation of residence periods (Article 16 ), the issuance of residence documents (Articles 18 and 19 ), restrictions on residence (Article 20), and equality of treatment (Article 23).

Two texts are our legal references for the immigration part of the draft withdrawal agreement:

  • the Treaty on the Functioning of the European Union (TFEU) – the articles covering freedom to move and reside, workers’ rights and freedom of movement, and rights for self-employed persons
  • Directive 2004/38/EC.

In the case of a no-deal Brexit, plans differ between EU member states. However, one common basis – Regulation n°2018/1806 – lists the third countries whose nationals must have visas when crossing the external borders.

ESTIA (European Travel Information and Authorization System) is an electronic system for tracking visitors from countries who do not need a visa to enter the Schengen Zone. The EU27 has built up various contingency measures to ensure continued legal residence under the no-deal scenario for UK citizens residing legally in an EU member state, and for UK newcomers.

Key contacts

Haiyan Cai
Legal adviser/Head of immigration
T +33 1 47 38 56 49