How Brexit will affect South Africans with EU passports

Britain’s decision to leave the European Union (EU) has left many scratching their heads as to what this move could mean both economically and for those Europeans still intent on living and working in the UK.

Justmoney interviews Philip Gamble, founder and managing partner of professional immigration consultancy, Philip Gamble and Partners, to find out what this will mean particularly for South Africans living in Britain with European passports as well as what it mean for those that still want to move to Britain.

Following the referendum, how long will it take for the ‘rules’ to change and what are the rules in the interim for those who have EU passports but want to live/work in the UK?

Philip Gamble (PG): The UK is still a member of the European Union and as such, European Union Nationals are still able to enter the UK under the existing arrangements. It is likely to take considerable time for any change in the law to take place and not impossible that new Treaties will be negotiated with the EU allowing similar rights of free movement to continue in some way.

That said, given that a principle feature of the leave campaign over here was taking control of migration again, any new treaties are likely to be far less generous in terms of immigration to the UK. The mechanism listed in the EU Treaties for a State leaving the EU shows that from the point at which the notice is given, a period of up to two years is given for that State to renegotiate trade deals before the existing Treaties cease. At the end of the two-year period, the State leaves the EU regardless. I therefore suspect that we could be waiting up to two and a half years before any substantial change in the law occurs.

What do the South Africans who are living in the UK with EU passports do now that there’s been a vote in favour of a Brexit? Should they apply for British passports perhaps if they’ve stayed in the UK for long enough? What about those that have only been there for a short while – what can they do?

PG: In October last year, the UK passed further legislation that prevented applications for British Citizenship from EU Citizens unless the applicant had first acquired the Permanent Resident’s status from the Home Office first. Those EU Citizens who have worked in the UK (or otherwise exercised EU Treaty rights) for a continuous period of five years are able to apply for the Permanent Resident’s Status. 

For EU Citizens who have only been in the UK for a short time, provided that the subject is working (or otherwise exercising Treaty rights), it is still possible to acquire residence documentation from the Home Office. The permits given under these arrangements usually last for five years and we feel that they will give some security for those holding the same.

What advice do you have for South Africans with EU passports that have since left the UK? Are they allowed to return?

PG: EU Citizens who have been continuously resident in the UK for five years and working in that time could hold the status of a Permanent Resident. Where an EU Citizen has completed such a five year period in the past and has not been away from the UK for a continuous period of two years or more, a certificate of Permanent Residence could be issued by the Home Office in the UK on that persons return to the UK.

In short, those who have the Permanent Resident’s status (whether certified by the Home Office or not) will only lose the status if away from the UK for two years or more. Some persons in this position specifically return to the UK every two years for a short visit to maintain their status.

EU Citizens who have worked in the UK for less than five years in the past and have since left the UK for more than six months would have to start afresh in terms of immigration status and in line with whatever the future provisions for EU Citizens may be. 

Notwithstanding the above, other regulations for returning residents exist in the UK’s domestic Immigration law and such provisions could be used to secure a grant of permanent residency. For example, a person who has spent a period of ten years or more lawfully in the UK at some stage in the past may very well be able to secure the permanent residents status again on returning to the UK.

It should also be noted that those with Irish Passports will be unaffected by any change.  The Irish have a special status which pre-dates the European Legislation and considers any Irish Citizen in the UK to be a permanent resident.

Can South Africans who have lived in the UK with EU passports for a number of years but have left to live elsewhere (say back to SA) be able to apply for indefinite leave to remain in some other way?

PG: A case by case approach should be taken.

What will happen to all the contributions South Africans with EU passports have made to the NHS/UK pensions?

PG: Payments to the NHS and State Pension contributions are dealt with through payments of National Insurance contributions in the UK. NHS patients are now subject to a resident’s test, which effectively means that only those EU and British citizens who are ordinarily resident in the UK could qualify for free treatment. No refunds are ever given in terms of payments of this kind. With pensions, again, no refund can be claimed on permanent migration overseas however a small pension could be available for those who have paid in to the system wherever they live at retirement age.

Could the UK adopt a points system for those entering the country, similar to that seen used in Australia?

PG: The principle issue for the Leave Campaign was about controlling immigration. The problem we have with the existing European treaties is that there’s no distinction between the qualified and unqualified coming over so there is no ability to control the numbers or the quality of the person that comes over into the UK. We mustn’t get things wrong – the UK does need immigration and for people to fulfil roles, such as in the health service – but we have to have a system in place that attracts the right people. The straight answer to the question is ‘yes’, that sort of a system is likely to come into place once the dust settles over here.

Justmoney’s final thoughts:

Some are still looking for a loophole to reject the Brexit vote but until this type of ‘saviour’ can be found, leaving the EU will have a profound impact on Europeans who have lived in the UK or that intend on living in the UK. While most voted to leave because of immigration fears, the irony is that immigration may now increase as EU citizens clamour to get into the UK before any caps on immigration can be introduced in the next two years as the UK works its way out of the EU.