Residence Rights in the EU

Two are the practical implications for UK nationals residing in member states with no other nationality to fall back on. First, due to the Kuric doctrine, the residence within the EU of nationals from the exited state is deemed to be legal. Even in the event of a non-negotiated cataclysmic withdrawal member states would not be allowed to consider UK nationals illegal migrants.

Second, British citizens around the Union would do well to have their position regularised as long-term resident third country nationals. Member states are not required to, but may consider facilitate the reg- ularisation of British nationals as long-term resident third country nationals. Both the Citizens directive and the Third country nationals long-term residence directive refer to the same quantitative (five years) and qualitative (continuous residence) requirements regarding the period of residence necessary to acquire permanent residence or long-term residence status. The second country national has in practice already met the requirement to be granted a long-term residence permit as a third country national. A first policy can thus be suggested: Unless the requirements have ceased to be met, the change of status from Union citizen with right of residence to third country national with a long-term residence permit ought to be granted automatically to British citizens who have already acquired the right to permanent residence in the host member state. Basically, Brits having lived in a member state for five years or more can stay. A stronger version of this policy suggestion has been made by scholars who have recently suggested that ‘a fairly modest legislative change to the Long-term residence directive that would mitigate the predicament of UK citizens could be the granting of Long-term resident status to mobile UK citizens, irrespective of whether they have met the continuous residence and/or other LTRD requirements’ (Ziegler 2016).

Many countries require third country nationals to comply with integration requirements before becoming long-term residents, including the UK. Integration tests, that are mentioned in the Third country national long-term residence directive but not in the Citizens directive, may be a hinder for freshly minted third country nationals with British passports, probably still European in colour, who may be subjected to such tests. Another policy suggestion could be to ease, or waive, the requirement of integration tests (and/or make sure these tests are not unreasonably strict or costly) so as to facilitate the makeover from second country national to third country national.

Those having lived in the country less than five years could also be granted leave to stay: Former Union citizens living in member states since less than five years would be able to make a claim in favour of freezing rights in the process of being acquired; since the Kuric doctrine would count to protect residence rights to be taken into account for a future application for status as long-term third country national.

Residence rights will be recognised for post-Europeans in the Union. Perhaps they will be harder to enforce for second country nationals in the UK, but also their residence rights have chances of being frozen. According to Richard Gordon and Rowena Mofatt, for instance, there are two strands of case law of relevance in seeking remedy for the ‘vested rights’ of second country nationals: The first, relating to vested rights and the second relating to fairness and, in particular, the doctrine of substantive legitimate expectation. The question of vested rights has been explored in the context of the Immigration Rules in the case of Odelola v. Secretary of State for the Home Department. European citizens would be in a far stronger position to invoke the presumption against retrospectivity in the event that a UK withdrawal from the EU altered or removed their existing free movement rights enjoyed in the UK. But this presumption against retrospectivity is valid only ‘in absence of express statutory language to the contrary’ (Gordon and Mofatt 2016). According to the same source, ‘it is considered likely that the common law would be astute enough to protect the pre-existing interests of EU citizens in the UK in the event of a UK withdrawal’ (Gordon and Mofatt 2016).

In sum, British citizens may thus be granted leave to stay in the Union. By the same token, we cannot exclude that second country nationals could see their residence rights frozen also in the UK.

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