Legal Briefing

Brits abroad: what are the options post-Brexit?

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Immigration | 20 October 2016

Following the result of 23 June 2016 Brexit referendum, many British citizens are concerned with what potential travel restrictions and immigration regulations may be implemented when travelling to EU countries after the UK leaves the EU.

A number of potential scenarios have been identified.

Appropriate national work authorisation for British citizens working and residing in the EU Currently, British citizens benefit from the right of free movement to work within the EU without restriction. Citizens from non-EU/EEA countries are required to obtain the appropriate work authorisation before taking up employment in an EU country.

Post-Brexit, it may be necessary for British citizens to apply for formal work authorisation, according to the national laws of each individual EU country where they wish to work.

As an example of the possible immigration regulations that may be imposed on British citizens travelling to the EU, Spanish law firm Sagardoy provided a summary of their view on the immigration consequences for British citizens and their families:

  • Based on current Spanish immigration regulations, from the moment British citizens cease to be EU citizens, they will not be entitled to the freedom of circulation and residence in Spain or other EU countries.
  • As such, unless specific provisions are approved at EU level, or by the Spanish government, British citizens will be incorporated into the general immigration system and will be considered as third country nationals.

Based on the above, the following scenarios may be considered:

Living and working in Spain

Current regulations set forth avenues for British citizens residing in Spain (holders of certificates of registration as an EU citizen) and their relatives (including third-country national holders of a residency card as an EU dependant), who cease to be EU citizens or dependants of an EU citizen.
In the event that no alternative measures are agreed at government level, British citizens may change status in-country to certain work and residence permits, according to the below:

Continuing within the EU framework

British citizens who are married to EU nationals resident in Spain will be able to obtain a residence card as the relative of an EU citizen, and thus be able to live and work in Spain under the same conditions as Spanish nationals.

However, British citizens who are the dependants of Spanish nationals will need to satisfy domestic immigration laws as, by residing in Spain, the Spanish national is not exercising treaty rights of free movement in another member state.

Modification process depending on particular circumstances

The current Spanish Immigration Act specifically sets forth a modification process for those who cease being EU nationals or holders of residence cards as EU citizens (Article 200.3 RD 557/2011).

Work permits would need to be applied for and issued (local hire, blue card, self-employed, researcher etc) providing all of the eligibility requirements are met.

Alternatively, residence permits are available for those with sufficient finances and who do not wish to work and thus not carry out any labour or lucrative activities. In such cases, the labour market shall not be entered into and there will be no need for a work permit. A long term residence permit may also be an option.

Application of Entrepreneurs Act Framework (Act 14/13)

Highly qualified professionals, intra-company transfers, investors, entrepreneurs and their families will be able to obtain residence permits providing stipulated requirements are met and complied with. An application in-country is possible; therefore it would not be mandatory to leave Spain.

Short-term business/tourist visitors to the EU and Schengen member states

Considering British citizens will, according to Sagardoy, be considered third-country nationals, prior agreement with the EU or each EU member state will need to be in place in order for a British citizen to enter and stay without a visa.

At present, third-country nationals are required to apply for a Schengen visa when travelling to a Schengen member state for short stay purposes, with general Schengen agreement regulations being applied. Short stay purposes include activities such as attending business meetings and discussions and tourism. When granted, the maximum duration of stay permitted to the holder of a Schengen visa, is 90 days in a 180-day period. Schengen visas can be valid for use for a particular duration of stay, or for one month, three months, six months or one year. In cases, eligible applicants can be awarded a visa valid for five years.

The applicant should file their Schengen visa application with the relevant diplomatic post of the country of their first entry. The country of first entry, and the country through which they are obtaining their visa, should also be their primary destination while they hold the Schengen visa. In other words, they should travel more to this country than any other in the Schengen region.

For those privileged nationals who do not require a visa for short visits to the Schengen state, the maximum permitted length of stay is 90 days within any rolling 180-day period.

EU citizenship via long-term residence

In most cases, British citizens who have been working and or residing in an EU country for at least five years, can apply for permanent residence of that EU country to maintain access to living and working in the EU.
Further, many EU counties, such as France, permit dual citizenship, enabling British citizens who meet the relevant domestic nationality laws to consider applying for EU citizenship, thus enabling them and their non-EU national spouses (and qualifying dependants) to continue exercising free movement rights throughout the EU.

EU citizenship via descent

Should an individual have a parent, grandparent or, in some cases, a great-grandparent born in an EU country, it may be advantageous to consider the possibility of obtaining EU citizenship via descent of a family member born in an EU country.

National laws of the applicable country would need to be satisfied, including consideration of whether the host EU country permits dual-nationality. The rules, processes and processing times differ greatly between countries.

For example, the processes in Italy and the Republic of Ireland are currently as follows.

Italy

An eligible applicant can file their citizenship application at the Italian consulate in their current legal country of residence. For applications submitted to an Italian consulate abroad, the processing period is extremely lengthy and is generally in the region of two to three years.

Alternatively, a resident of Italy can file their application in Italy. The fast-track process requires the applicant to first establish permanent residence in Italy. Once established, this process can take approximately five to seven months to finalise.

Eligibility for Italian citizenship can be via descent where it is automatic at birth through the paternal line. There is also no limit on the number of generations when seeking citizenship via the paternal line. Citizenship by descent can also be automatic through the maternal line, in cases where individuals were born after 1 January 1948.

Ireland

An individual is automatically considered to be an Irish citizen if an individual’s parent is an Irish citizen, who was born on the island of Ireland, regardless of where the applicant was born. In this case, an application for an Irish passport need only be submitted, together with the relevant documentation.

Alternatively, Irish citizenship can be obtained if an applicant’s grandparent was born in Ireland, or if one parent was an Irish citizen at the time of the applicant’s birth, but was not born in Ireland. On these occasions, an individual may be eligible for Irish citizenship by way of descent, which requires registration of one’s birth into the Irish Foreign Births Register.

An application for Irish citizenship through Foreign Birth Registration can be submitted by any person with a grandparent born in Ireland, or by any person whose parent received Irish citizenship, or was deemed to be an Irish citizen prior to the birth of the applicant. A person whose great-grandfather or great-grandmother was born in Ireland may register for Irish citizenship provided that their parents had registered in the Foreign Births Register at the time of the applicant’s birth.

Applications for Foreign Birth Registration normally take three to six months to process. However, due to the current high demand, applications are expected to take much longer, and in cases between 12 to 15 months.
Depending upon the individual circumstances, applications for Foreign Birth Registration can either be filed at an Irish embassy abroad, or with the Department of Foreign Affairs in Dublin.

Upon receipt of the Foreign Birth Registration certificate, the applicant can then apply for their Irish Passport.

EU citizenship via investment

Citizenship via investment is available to eligible investors in a number of EU countries, including, among others, Austria, Bulgaria, Cyprus, Malta and Portugal.

Citizenship status is granted to eligible individuals, and in most cases their dependants, who hold resident status in the desired EU country for a period of time (in some cases this is not required) and upon a minimum level of investment in property, shares or bonds, the transfer of capital or the creation of jobs (the required investment varies from country to country).

For example, Maltese citizenship by investment was approved by its government in November 2013 and the Malta Individual Investor Program (MIIP) was subsequently developed, as follows:

Eligibility

The principal applicant for citizenship by investment must be at least 18 years of age, and all applicants (including eligible dependants (such as spouse, children, parents and grandparents) must have a clean criminal record and be of good health. Applicants are required to show that they do not suffer from any contagious disease or a health condition whereby the applicant would become a significant burden on the health system.

Due diligence fees will be charged as each applicants’ status will be verified with the International Criminal Court, INTERPOL and other relevant authorities (with the fees currently set as €7,500 for the main applicant, €5,000 for spouses and adult children and parents, and €3,000 for child applicants between 13-18 years of age).

All applicants must make a contribution to the National Development and Social Fund established by the government of Malta. The minimum contribution levels required to be met are as follows:

  • Principal applicant €650,000;
  • Spouse and minor children: €25,000 each;
  • Dependant children 18 to 26 years or dependant parents above 55 years: €50,000 each.

Applicants are required to invest in property to a minimum value of €350,000 or enter into a property rental contract for €16,000 per year on a five-year contract. Applicants must also invest at least €150,000 in government approved bonds or shares which must be maintained for five years.

Maltese citizenship application process
Step one: residence card application

Applicants who are not already resident of Malta need to apply for a residence card in order to begin the mandatory one-year residence required for citizenship.

At this stage a deposit of €5,000 is required in relation to the principal applicant (and €1,000 for each dependant), on account of the €650,000 contribution to the National Development and Social Fund.

This process can take one to three weeks using the fast track service.

Step two: citizenship application

The application is formally submitted to Identity Malta, who will review the application, source funds and undergo due diligence (such as criminal record checks and that the funds are legal and genuine). Due diligence fees, passport fees and a further deposit of €10,000 on account of the €650,000 contribution are required at this stage.

This step of the process can take four months.

Step three: in principle approval

Identity Malta confirms the documentation submitted is sufficient and provides its approval to the fulfilment of the obligations undertaken under the Individual Investor Program.

Identity Malta will at this stage request payment of remaining balances and contributions to the National Development and Social Fund.

Step four: compliance

Evidence of the investment is required at this stage. This stage of the process can take four months.

Step five: oath of allegiance and certificate of naturalisation

The naturalisation certificate will be issued, subject to oath of allegiance and one year of residence in Malta. Once the certificate of naturalisation has been issued, a Maltese passport can be applied for.

Holding dual citizenship (where permitted), can thus assist an individual to obtain or retain citizenship of an EU country, and enjoy the benefits of free movement within the EU.

Conclusion

The Brexit referendum result has potentially wide implications for the movement and employment opportunities of UK citizens within the EU as the relationship between the two countries changes.

Prior to any UK/EU negotiations commencing following the triggering of Article 50 of the Lisbon Treaty, many talking heads are taking a wait-and-see approach, especially in relation to immigration regulations that may be implemented by the EU and the member states. The uncertainty as to the time frame for any changes to existing pan-EU migration and travel is a tangible problem in itself.

The future relationship between the UK and EU may well be uncertain, yet the basic foreseen implications for UK citizens wishing to travel and work in the counties of the remaining EU members requires all interested parties to ensure the mantra of ‘business as usual’ is enacted. As to the operational methodology to enable this, the choice is wait-and-see or be proactive and utilise the existing legal framework to maximise stability.