BREXIT: Immigration, residency & work in UK and EU

We have been contacted by many Portuguese and British citizens with interests in the UK and in Portugal with a view to clarifying the impact of BREXIT decision on their future.

We present below a summary of the main questions that we have been asked:

1. Does BREXIT imply the UK’s immediate exit from the EU?

No, from the perspective of European Union Law, the exit of any EU Member State is not immediate and occurs only at the end of a negotiation process, set forth in the Treaty of Lisbon, which is triggered by a formal request to leave the EU being submitted to the European Council, in accordance with article 50 of the aforementioned treaty. Submission of this request marks the beginning of the process and the counting of the period for leaving the EU, which should take place within two (2) years, unless this period is extended by mutual agreement.

As we write, the UK has not yet submitted a formal request to leave as laid down in the aforementioned article 50 of the Treaty of Lisbon, and there is no foreseeable date for doing so, because, among other reasons, the outgoing Prime Minister David Cameron has already announced that he will not do so and that it will be up to his successor to submit the formal request to leave the EU.

It should be added that, from the perspective of UK domestic law, the result of the referendum is not binding, which would make it possible, according to some experts, to argue that it may be reversed, either by Parliament (which is sovereign and must approve the terms in which the UK would leave the EU) or in a scenario of a general election in the UK in which the newly elected political party stood for the UK remaining in the EU.

2. When will the UK leave the EU?

It is impossible to predict a date because this process is unprecedented, complex and subject to negotiation. As we write, the leave process has not even started, because the UK has not submitted a request to leave to the European Council.

Once the request to leave is formalised, a negotiation process concerning the terms applicable to exit and future relations between the parties will commence and its outcome will subsequently have to be approved by a qualified majority of EU Member States, after being approved by the European Parliament. This agreement will also have to be approved by the UK Parliament. EU treaties and other laws will only cease to apply, and the UK will only effectively leave the EU, once the agreement regulating such exit enters in force.

3. Will Portuguese citizens need a passport to travel to the UK? And will UK citizens need a passport to travel to Portugal or other EU Member States?

During the negotiation period and until the expiry of the two-year period after the request to leave is formally submitted (which period may be extended by mutual agreement), EU treaties and other laws will continue to apply within the UK, which means that EU citizens will be able to travel and emigrate to the UK under the same terms as presently. For the same reason, UK citizens may emigrate to Portugal or any other EU Member State.

After the UK leaves, the answer to this question will depend on what will be agreed between the UK and the EU or possibly negotiated directly with Portugal.

The models currently viewed as the most likely are the Swiss model (execution of various bilateral agreements regulating relations between the parties) and the Norwegian model (the UK becoming a member of the European Economic Area).

If a model similar to the Swiss model is negotiated with the UK, there should be no significant restrictions in terms of freedom of movement and establishment (EU citizens may freely emigrate to Switzerland, which is even a party to the Schengen Agreement). If the model ultimately adopted is similar to the Norwegian model, freedom of movement and establishment for EU citizens will remain unaffected and, accordingly, no material changes are anticipated in this respect. Other alternatives may indeed be chosen, but it should be stressed that, as we speak, there is no agreed model for the negotiations between the parties. Therefore, it is impossible to predict the outcome of negotiations that have not even commenced.

4. Will Portuguese emigrants residing in the UK be expelled? And UK citizens residing in Portugal?

It is highly unlikely that either the UK or the EU will expel any Portuguese or other EU citizens legally residing in their territory. Both blocks have a long standing tradition of respect for the rights acquired by national and foreign citizens, including the right to reside in their territory.

5. Will the employment contracts of Portuguese emigrants residing in the UK be terminated as a result of BREXIT? And UK citizens residing in Portugal?

It is unlikely that either the UK or the EU will adopt any laws in the sense of terminating employment contracts as a result of the UK leaving the EU. Both blocks have a long standing tradition of respect for the rights acquired by national and foreign citizens, including the valid right to employment.

6. Will it be more difficult for Portuguese citizens to reside in the UK and for UK citizens to reside in Portugal?

While the negotiation process lasts, it is unlikely that the conditions applicable to travel and residence will harden, because EU treaties and laws will remain in force in the UK, which will still be a member of the EU. Once the UK has left, the solution will depend on what is agreed between the parties, notably with regard to freedom of movement and establishment in the other party’s territory.

For this reason, we have advised our clients who wish to move to one or the other country to do so as soon as possible, in order to secure their rights, notably the right to reside in the territory in question.

7. Will it be more difficult for Portuguese citizens to study in the UK and for UK citizens to study in Portugal?

While the negotiation process lasts, it is unlikely that the conditions applicable to travel and residence will harden, because EU treaties and laws will remain in force in the UK, which will still be a member of the EU. Once the UK has left, the solution will depend on what is agreed between the parties, notably with regard to freedom of movement and establishment in the other party’s territory.

For this reason, we have advised our clients who wish to move to one or the other country to do so as soon as possible, in order to secure their rights, notably the right to reside in the territory in question.

8. Will Portuguese citizens’ assets be expropriated in the UK? And UK citizens’ assets in Portugal?

BREXIT does not imply any expropriation of any assets EU citizens may have in the UK or the EU.

9. I am a Portuguese citizen and I live in London, UK. What should I do to make sure I may remain in the UK?

As we write, the UK is still a member of the EU and, accordingly, there are no restrictions on the entry and establishment of EU citizens in the UK. If you have already resided in the UK for more than five years, we advise you to consider applying for permanent residence in the UK or applying to become a UK national, which will not necessarily cause you to lose your Portuguese nationality.

10. I am a UK citizen and I live in Lisbon, Portugal. What should I do to make sure I may remain in Portugal?

As we write, the UK is still a member of the EU and, accordingly, there are no restrictions on the entry and establishment of EU citizens in Portugal. If you have already resided in Portugal for more than five years, we advise you to consider applying for permanent residence in Portugal, or applying to become a Portuguese national if you have already resided in Portugal for more than six years.

Should you wish to raise any other issues, please send your questions or comments to brexit@reismalheiro.com.