The leave campaign insists EU nationals already in Britain would be able to stay – but immigration lawyers say it’s not so simple

Claim

The leave campaign has given unequivocal assurances that any new immigration system would not affect the estimated 3 million non-British EU citizens already in the country. It follows that this would also apply to the 2 million Britons estimated to be living in Europe, including retirees in Spain.



“There will be no change for EU citizens already lawfully resident in the UK,” the campaign says. “These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present,” says Vote Leave on its official website.

The group also says the Vienna convention will protect the rights of both EU citizens in the UK and British citizens living elsewhere in Europe.

The remain side is also unequivocal.

“All current EU citizens here would lose their automatic right to come and work in the UK. This means that living and working in the UK would be significantly more difficult after a leave vote for EU citizens, and is likely to involve restrictions and barriers in the form of permits, visas or other costs and bureaucracy,” says the Stronger in Europe side.

The reality

Leading lawyers say the leave claims are “not based in fact” and the status quo is unlikely to continue, given that immigration is so central to the leave campaign.

“There is no cast-iron guarantee on acquired rights in the event Britain leaves the EU,” says Sionaidh Douglas-Scott, professor of law at Queen Mary University of London and an expert in European law. “If you leave the EU you are no longer a member of the club that gives you those rights.”

Acquired rights are likely to relate to the right to residence, to work, to run a business, to own a property, the right to access public services such as health and education, and the right to remain in a country after retirement.

The question the Brexit campaign is not answering is whether EU treaties require rights acquired under EU law to be continued should a state leave the EU?

Douglas-Scott points out in her blog on UK constitutional law that article 50 of the Treaty of the European Union (TEU), which governs the process of any country exiting the EU, does not mention acquired rights. So the answer appears to be no.

Facebook Twitter Pinterest East European workers picking strawberries in the UK. Photograph: David Wootton/Alamy

The wider claim made by Brexiters that the Vienna convention on the law of treaties would guarantee the continuance of rights acquired by living in a country that belongs to the EU is also not correct, say lawyers.



Douglas-Scott says this claim is a “red herring” as the convention provides protection to states, not to individuals, while Jane Golding, a Berlin-based British lawyer, says: “It is not correct to say this offers solid protection.” The convention has not been tested and would have to be interpreted by the courts, Golding adds.

“They are going round telling everyone that the Vienna convention gives us clear acquired rights, but it doesn’t. They have also omitted the fact that France has never signed up to it. So what would that mean for British in France?” she added.

The rights of EU immigrants will not change overnight but Nick Rollason, immigration partner at London law firm Kingsley Napley, believes an inevitable consequence of the Brexit campaign is that people will need new documentary evidence of their right to remain.

“When a potential employer asks for evidence of your right to live in the country, it won’t be enough just to show your passport,” says Rollason. “They will want proof.”

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An Australian-style points system already exists for would-be immigrants from outside the European Economic Area and this could be applied to new applicants or even current residents.

The tier 2 visa system is the main route for visa applicants and operates on a points system similar to that of Australia with salary, English language fluency and other factors scored. After five years of continuous residency, visa holders can apply for the permanent right to remain in the country.

In practice proving continuous residency for five years is not straightforward. “If you’ve been made redundant, if you’ve had a sabbatical, had study leave or travelled, it can be difficult,” says Rollason.

For those in the UK for more than 10 or even 20 years, applying for permanent leave to remain in the UK after Brexit could also be a challenge if paperwork such as P60s have not been kept.

Granting permission for EU nationals to stay would have to be supported in law and, Rollason believes, in practice with documentation required to demonstrate the right to work and settle in the UK.



For this reason, he believes EU citizens concerned about their rights in the UK should look at applying for a registration document.



Verdict

The rights of EU citizens living in the UK are not guaranteed and would be part of the negotiation with Europe in the event of a Brexit.

There is already an Australian-style points system to stop uncontrolled numbers from outside the EEA coming to Britain.

It is almost certain that non-British citizens who had the right to live and work in the UK would need documentation to prove their rights beyond an exit.