Article 50: Relax Don’t Panic
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
Article 50 is the Article of the Treaty of European Union which allows member states to notify the EU of its withdrawal and obliges the EU to try to negotiate a withdrawal agreement with that state. How will it happen?
- A member state, The United Kingdom, (UK) decides to withdraw from the Union
- The faceUK notifies the European Council of its intention and the Union starts negotiations and concludes an agreement with the UK, setting out the arrangements for the withdrawal. That agreement is negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union.
- All treaties that apply to the UK cease on the date of entry into force of the withdrawal agreement; Or failing that, two years after the notification, unless the European Council decides to extend this period. It is unlikely to happen in our case because we know that EU leaders have said that they expect the UK to give effect to the decision as soon as possible, however painful that process might be, and any delay would unnecessarily prolong uncertainty. In other words they want us to act swiftly.
- The UK will have no say in the discussions of the European Council or any decisions concerning it.
- If the UK asks to re-join, this request would be subject to the procedures referred to in Article 49 of the same treaty.
THE ONE WAY STREET
We have entered a one-way street. As the UK decided to leave there is no turning back and we have to start preparing now for the future. It also means that despite what we feel, the EU will have the final say and the EU is in charge of the negotiation timetable.
Now is the time to prepare for the next two years. The borders will not immediately close and sooner or later new rules will be in place as to who can come into the UK and who cannot. Whilst it is possible for the UK to agree to maintain the free movement of labour in return for access to the EU single market, i.e., the Norwegian model, it seems unlikely, given that we wanted so much to take back control of Immigration.
ACTION TO BE TAKEN
There are no immediate legal consequences and the law of the United Kingdom will only change when Parliament enacts new rules through the full parliamentary process. No such laws have been passed. David Cameron is stepping down as the Prime Minister and therefore we do not know what will happen in the next few weeks. However, if the new Prime Minister does trigger Article 50, then the UK will have to leave the EU and at that point we will no longer be subject to EU law, including the free movement law.
GUESS THE FUTURE
Some think that the free movement law will be incorporated into UK law. At least this will apply to those who are already in the United Kingdom and are already residents in the UK. In the worse-case scenario, all 3 million EU workers will suddenly be required to make new applications. This is extremely unlikely but still a possibility.
It may be that the UK will stay in the European Economic Area like Norway, in which case there will be no change. However, given that Immigration was the decisive factor in the recent upheaval it is unlikely this will happen. One thing is for sure, EU nationals are extremely concerned about their futures and about the current position. Family members of these EU nationals may be even more concerned. Our advice is to apply for a residence document, for a permanent residence document or for naturalisation as soon as possible.
Here is how to do this:
HOW TO MAKE A PERMANENT RESIDENCE APPLICATION
You can apply for permanent residence if you have lived in the UK for five years and you are a European national or you are an EA family member of a “qualified person” throughout the five years. A “qualified person” is someone who has exercised treaty rights for the past five years.
To apply you need to download a Permanent Residence Card application form and post it to the Home Office together with a fee of £65 per person. You can only apply by post. You cannot apply for a document certifying permanent residence in person.
HOW TO MAKE A FIVE YEARS RESIDENCE PERMIT APPLICATION
If you do not qualify for permanent residency you may wish to apply for a Residence Card. Recent years have shown that EU Residence Card applications are getting more complicated. Your direct family members can apply to remain with you and also get a five year Residence Permit. These family members can be your spouse, your civil partner, your child or their child or grandchild, who is under the age of 21, or their dependent parent or grandparent.
Extended family members are the unmarried partners of EU nationals who have lived together in a relationship akin to marriage for two years. They can also be relatives of an EU nationals, who do not qualify as direct family member e.g. brothers, sisters, aunts or uncles. As well as being relatives of the EU nationals ,they will have to prove that before coming to the UK they were dependents of the EU national or were members of the EU national’s household and are still dependent on them and still members of the household.
THE OTHER BASIS OF APPLYING
Retained right of residence
You can apply for a Residence Card if you used to be a family member or an extended family member of a qualified person. This is called “Retained Right of Residence”. You can obtain this if you were married or a civil partner to an EU citizen and this relationship has ended in divorce, annulment or dissolution. Alternatively, you can apply if your EU family member has died and you have lived in the UK as their family member for at least one year before their death. You can also retain your right of residence if you are in education and you are the child of an EU citizen who has left the UK or died. Additionally if you are the parent of a child who has retained a right of residence because they are in education, you can apply.
Surinder Singh Cases
You may be able to apply for a residence card as a Surinder Singh case if you are a family member of a British citizen and you have lived with them in another EU country where they worked or were self-employed before returning to the UK and you can show that the UK sponsor based their centre of life in the EU country in which you were both residents before returning to the UK.
Please feel free to call us with any questions relating to the changes in the law and how it might affect you at 02072674133