The new Agreement published on 8 February 2019 provides protection to the rights of residence for three EEA EFTA States: Norway, Iceland and Liechtenstein in the event of a no-deal. Fortunately for these selective States the entitlements (to work, study and access public funds) of their nationals will be broadly as they are now. Their rights will be protected by international and domestic laws post Brexit. Please note that similar provisions already apply to Switzerland.
The Agreement confirms that EEA EFTA nationals who have exercised their right in the UK prior to exit day (i.e. prior to 29 March 2019) will be able to continue to exercise this right post exit day. Similarly, UK nationals who have exercised their right in an EEA EFTA State prior to exit day will also be able to continue to exercise this right post exit day.
Right of Residence
EEA EFTA nationals and their family members who have resided in the UK for a continuous period of 5 years by exit day will have the right to reside in the UK permanently. Those who have not resided in the UK for a continuous period of 5 years will be able to remain in the UK until they have reached 5 years, at which point they will have a permanent right to reside in the UK.
Who is covered?
- Those who hold a Permanent Residence document will be able to switch to a new residence document without a fee. Although they will be required to verify their identity, a criminality and security check will be carried out and they will be required to provide evidence of their ongoing residence.
- Frontier workers and self-employed will also be covered under this Agreement.
- Family members of EEA EFTA nationals.
- Close family members (spouses, civil and unmarried partners, dependent children, grandchildren and dependent parents and grandparents) who arrive after exit day can join at any point as long as the relationship existed prior to exit day and the relationship still exists.
- Children born to individuals who are in scope of the Agreement will also be protected by the Agreement if the individual has custody of the child.
Application process
EEA EFTA nationals and their family members will be able to apply for residence status through the EU Settlement Scheme. As with EU nationals, EEA EFTA nationals and their family members will have until the 31 December 2020 to apply if there is a no-deal situation.
Those who have been residing in the UK prior to exit day will have no less than 6 months from exit day to apply. Those who arrive in the UK after exit day and are exercising their right to reside in the UK, will have 3 months from the date they have arrived, to apply. A Certificate of Application will be issued immediately which can be used as proof of their right to reside in the UK. The Government has also proposed that they will aim to make the application process quick, simple and transparent.
Revocation of Permanent Right of Residence
A right of residence can be lost through an absence of more than 5 years from the host country unless this is due to exceptional circumstances. Alternatively, a right of residence can be restricted or revoked if an individual is a serious or persistent criminal offender.
Mutual recognition of professional qualifications
There has been an agreement that EEA EFTA nationals and UK frontier workers will have their professional qualifications recognised if they applied for or obtained a recognition decision prior to exit day.
Fair treatment for EU nationals?
The rights of EEA EFTA nationals confirmed in this Agreement is in contrast to the rights of EU citizens in the event of a no-deal, where their rights will be watered down. This means that effectively EEA EFTA nationals will benefit the most because their rights will be ring-fenced and therefore a no deal Brexit will not disadvantage them. A clear win-win situation for them.
The question then arises as to whether this can apply to EU nationals; should their rights be ring-fenced in a similar way?