ILPA Briefing Paper – Who will remain after Brexit? Ensuring protection for all persons resident under EU law by Bernard Ryan, Professor of Migration Law, University of Leicester (6 December 2017)

This briefing paper addresses the possibility that some categories of person with EU free movement rights, and who have been resident in the United Kingdom, will be left without a right to reside in the United Kingdom after Brexit. Assuming that there is a withdrawal agreement which includes provision for “citizens’ rights”, it is likely that that will guarantee a right to remain to the large majority of such persons. This paper will however identify a number of gaps, concerning both EU citizens and third country nationals. It will indicate solutions that could be pursued, within the withdrawal agreement and at the United Kingdom level.

Its recommendations may be summarised as follows:

• All rights of residence conferred upon family members under the Citizens Directive should be protected, irrespective of nationality (section 1).
• All rights of residence which flow from Articles 20 or 21 of the Treaty on the Functioning of the European Union (‘TFEU’), should be protected, irrespective of nationality (section 2).
• Provision for continuing cross-border employment and self-employment should be underpinned by an explicit right of residence (section 3).
• Third-country posted workers should be permitted to complete an employment in the United Kingdom which is ongoing at the date of Brexit (section 3).
• The right of residence deriving from Regulation 492/ 2011 on the free movement of workers should be expressly protected (section 3).
• The United Kingdom should commit to treat EFTA-4 nationals on the same basis as EU-27 nationals (section 4).
• The United Kingdom should commit to permit Turkish self-employed persons and workers, and their family members, who are resident by virtue of EU law, to remain (section 4).
• All persons with post-Brexit rights to remain should have access to a permanent status after an appropriate period of continuous residence (section 5).
• Effective provision should be made for out-of-country applications for evidence of a right of permanent residence or settlement (section 6).
• EU-27 citizens and family members should be permitted to resume residence where they previously held a right of extended or permanent residence (section 6).
• A continuing right of residence should be guaranteed to all EU-27 citizens who have a place of residence in the United Kingdom (section 6).
• There should be a route to long-term stay for non-qualifying EU-27 citizens and family members who can provide evidence of an appropriate period of actual residence (section 7).