On December 9 the negotiators of the EU and the UK government published a report, aligning their positions on EEA citizens post-Brexit. It follows the UK government’s technical note in November detailing its proposals for UK resident EU citizens, including Maltese citizens, and their family members who wish to remain in the UK after the UK leaves the EU.
In this article, we address what the proposals mean for Maltese nationals in the UK and for those who are looking to move to the UK in the near future.
As Malta is a member of the EEA, you are entitled to visit the UK for a period of up to three months without any formalities. Should you wish to remain in the UK for more than three months, you will need to be employed, self-employed, a student or self-sufficient (the latter two are required to have comprehensive medical insurance at all times). This is referred to as “exercising your treaty rights”. You are also able to bring your family members to the UK whether or not they are Maltese or EEA citizens.
Once you have completed a five-year period of continuous residence (in exercise of your treaty rights), you automatically acquire permanent residence status in the UK. Maltese citizens and their family members will continue to enjoy the rights they have under the EU treaties.
Permanent residence is an immigration right granted to EU citizens under the UK’s implementation of EU law. Broadly, permanent residence mirrors the right granted to non-EU citizens, which is referred to as “indefinite leave to remain in the UK”.
As permanent residence is acquired automatically, you are not required to apply to the Home Office to get it. However, you can apply for a document certifying that you have it, should you wish.
Historically, few EU citizens living in the UK made this application but since the referendum it is widely accepted that it is sensible for EU citizens who qualify to apply for a certificate as it is the best way to prove that they have acquired permanent residence.
Under current law, once a person has permanent residence they are entitled to live in the UK indefinitely, irrespective of whether they are exercising treaty rights.
The UK Prime Minister has stated that the UK’s membership of the EU will end at 11pm GMT on March 29, 2019, and from this point the UK will no longer be bound by the EU directive which created permanent residence. The UK government has proposed that permanent residence will be replaced by “settled status”.
Settled status will be similar to permanent residence. It will allow you to live and work in the UK indefinitely. If you hold permanent residence at the exit date, and you wish to retain the rights associated with it, you will need to make an application to swap your permanent residence for settled status after the exit date.
We do not yet know whether EU citizens arriving in the UK following Brexit will be able to apply for settled status, although this is likely to form part of the next stage of negotiations.
To help you understand the current state of play and how it will impact you as a Maltese national, we have identified four scenarios:
Once a person has permanent residence they are entitled to live in the UK indefinitely, irrespective of whether they are exercising treaty rights
1. Maltese nationals who have been residing in the UK for five continuous years prior to the exit date. If you fall in this category, you will be guaranteed settled status in the UK.
If your family members join you in the UK before the UK leaves the EU, current EU law will apply and they will be able to apply for settled status after five years’ continuous residence. If they arrive after the UK leaves the EU, they will be subject to the same rules as family members joining British citizens under domestic law, which are not as generous.
2. Maltese nationals who arrive before the exit date but have not completed five years continuous UK residence by the exit date.
If you fall in this category, you will be able to continue to live and work in the UK during the two-year transition period without having to apply for permission.
The UK government intends to have a transition period of up to two years that will start from the exit date. If you wish to continue to live in the UK after March 29, 2021, you will need to apply to the Home Office for a temporary residence permit within the transition period.
The permit will last for up to five years and will enable you to continue lawfully living and working in the UK until you meet the five-year threshold to apply for settled status.
3. Maltese nationals who arrive after the exit date.
If you fall in this category, you will still be able to live and work in the UK during the transition period without having to apply for any permission.
At the end of the transition period, you will need to apply for a visa or residence in accordance with UK domestic immigration rules which will be in place at the time.
4. Maltese nationals who are currently living in the UK without exercising their treaty rights.
If you fall in this category, then you may be here in breach of immigration rules. This may have a detrimental effect on your ability to enter or live in the UK in the future.
It is our view that Maltese citizens who have met the criteria for permanent residence should consider applying to the Home Office for the permanent residence card even if strictly speaking it is not yet legally necessary. Holding a card is the best way to evidence your permanent residence status and eventually obtain settled status.
It has become a mantra of the Brexit negotiation that nothing is agreed until everything is agreed. If you do not meet the requirements for permanent residence, we suggest that you take “a wait and see” approach but ensure that you are meeting the current rules on UK residence under the EU directive. For example we still recommend that you take out private medical insurance if you are a student or a self-sufficient person.
British citizenship provides you with certainty that you may live in the UK permanently regardless of what deal is finally agreed between the UK and the EU and/or what the UK immigration law says post-Brexit. It also ensures your right to live in the UK will not be lost if you leave the UK for two years or five years as provided under the joint report.
If you qualify for citizenship, you should therefore consider applying but before making an application you should consider carefully what the legal or tax implications will be for you.
Luke Micallef-Trigona is a solicitor writing on behalf of Irwin Mitchell LLP.