The implications of Brexit on residence rights and social security Anthony Valcke

1. The implications of Brexit on residence rights and social security Anthony Valcke ECAS – European Citizen Action Service –AISBL, 77 Avenue de la Toison d’or – B-1060 Brussels - Belgium Tel: +32-2 548 04 90 – Fax: +32-2 548 04 99 – E-mail: info@ecas.org– Website: http://www.ecas.org/

2. Today’s Menu • Residence rights • Social security • … another time : implications for business

3. Residence rights • YEA statistics • YEA typical questions • Best practices • Recent developments in UK • application and refusal rates • new EEA Regulations • A possible Brexit deal?

4. Your Europe Advice 18% increase in questions relating to entry and residence relating to UK between May and July 2016 Proportion of enquiries relating to other MS made by UK citizens which concern entry & residence (2016 vs average for 2015) Proportion of enquiries relating to the UK which concern entry & residence (2016 vs average for 2015)

5. Your Europe Advice • Typical enquiries • What is the immediate effect on residence rights in UK (and EU)? • Can EU citizenship be retained after UK withdraws from EU? • Can British citizens challenge referendum result • Should I apply for permanent residence in the UK? • Should I apply for naturalisation as a British citizen? • What can UK nationals do to safeguard their rights in other MS?

6. Some best practices…

7. EU citizens and family members should apply for residence documentation in the UK • EU citizens can apply on-line • for a registration certificate: • https://visas-immigration.service.gov.uk/product/eea-qp • for permanent residence document: • https://visas-immigration.service.gov.uk/product/eea-pr • video guide on Free Movement blog (18 mins): • https://www.freemovement.org.uk/online-eea-permanent-residence-european-passport-return-service-now-available/ • But TCN FMs must still apply by post

8. EU citizens residing in the UK If no reciprocal deal following Brexit, EU nationals would be covered by UK immigration rules: • Work permit obligation • Family reunion • Partners and children subject to income requirement • £18,600 + £3,800 for first child + £2,400 for each additional child • Parent of British child • Ascendant must be aged > 65 • No general leave to remain for self-sufficient persons • No leave to remain for students who have completed studies • No recourse to public funds • Healthcare surcharge • £150 per year for students • £200 pre year for others • Knowledge of English

9. EU citizens should be careful when considering an application for naturalisation as British citizen • Immigration (European Economic Area) (Amendment) Regulations 2012 (SI No. 1547) • Amended reg 2 (Interpretation) of Immigration (EEA) Regulations 2006 ‘“EEA national” means a national of an EEA State who is not also a British citizen;’ • Dual British/EU citizens will no longer benefit from EU rights following naturalisation • Therefore if EU citizen has family member residing in UK they should not apply for naturalisation until a year after family member has obtained permanent residence card in UK • CJEU reference pending in Case C -165/16 Lounes

10. UK citizens residing in other EU countries • UK nationals should ensure they have residence documentation • If no reciprocal deal following Brexit, UK nationals may be able to rely on Directive 2003/109 on long-term residence • Article 4 (1): “Member States shall grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application.” • but studying excluded by Article 3(2)(a) • Case C- Joined cases C-424/10 and C-425/10 Ziolkowski and Szeja “63. … periods of residence completed by a national of a non‑Member State in the territory of a Member State before the accession of the non‑Member State to the European Union must, in the absence of specific provisions in the Act of Accession, be taken into account for the purpose of the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38, provided those periods were completed in compliance with the conditions laid down in Article 7(1) of the directive.”

11. Recent developments in UK • Both application and refusal rates are up Applications in 2016Q3 (56,024) up 253% compared to 2015Q3 (22,174)

12. Recent developments in UK • New Immigration (EEA) Regulations 2016 • http://www.legislation.gov.uk/uksi/2016/1052/made • Applications must now use standard form (reg 21(1)(b)) • “Misuse of a right to reside” (reg 26) • Expulsion on public interest grounds expanded (reg 27(8) and Schedule 1) • considerations of public policy, public security and the fundamental interests of society etc. • ”Extended family members” no longer have right of appeal (reg 36(4) • following Upper Tribunal decision Sala (EFMs: Right of Appeal) [2016] UKUT 411

13. A possible Brexit deal? • UK demands • Controls on EU migrants who come to work • Restriction on claiming benefits for 4 years • Not subject to CJEU jurisdiction • No contribution to EU budget • EEC-Turkey Association Agreement Decision 1/80 • National immigration law applies to entry and work authorisation • Right to renew work permit with same employer after 1 year • No change of employer in first year • Right to change employer after three years subject to rules on giving nationals priority • Free access to labour market after four years • Equal treatment as regards working conditions only • Family reunification subject to national law • National law applies to students and self-sufficient persons

14. Social Security

15. Your Europe Advice • Typical enquiries • Can I transfer my contributions from the UK to my home country? • How will Brexit affect my pension? • How will Brexit affect my healthcare rights?

16. Social security • Uncertainty as to whether acquired rights under Regulation 883/2004 will be protected • If no deal on acquired rights: • No right to exportability of benefits and pensions • No right to aggregation

17. Social security • If no deal on acquired rights: • EU citizens in UK • Regulation 883/2004 does not apply outside EEA • C-331/06 Chuck: EU rules do not apply to the payment of pensions to pensioners residing outside the EU • Bilateral agreement? • NL, NO, IR, MT, FR, SE, etc

18. Social security • If no deal on acquired rights: • UK citizens in EU All MS except DK (and UK) • TCNs benefit from Regulation 883/2004 in accordance with Regulation 1231/2010  DK only • TCNs do not benefit from Regulation 883/2004 or Regulation 1408/71 (see Regulation 859/2003)

19. A possible Brexit deal? • UK demands • Controls on EU migrants who come to work • Restriction on claiming benefits for 4 years • Not subject to CJEU jurisdiction • No contribution to EU budget • Agreement to protect acquired rights only?

20. Thank you for attending our very first webinar. See you next time! • ECAS – European Citizen Action Service –AISBL, 77 Avenue de la Toison d’or – B-1060 Brussels - Belgium • Tel: +32-2 548 04 90 – Fax: +32-2 548 04 99 – E-mail: info@ecas.org– Website: http://www.ecas.org/