As a direct access immigration barrister based in London nowhere has felt the fall out from the shock Brexit vote more. There is a lot of misinformation and fear around so it makes sense to let out regular readers know as
For the benefit of our regular readers and clients, here is a quick roundup of what we know so far:
Strictly speaking, the referendum result is NOT legally binding and does NOT automatically trigger a Brexit. However from a political perspective it is highly unlikely that Parliament and the Government would ignore the votes of more than 17 million people.
2. In order to formally start the leaving process the UK would need to trigger Article 50 of the Lisbon Treaty, which is the legal document that currently provides the constitutional framework of the EU.
This procedure requires the UK to formally notify the European Council of its intention to leave the Union. This is followed by formal bilateral negotiations of the withdrawal arrangements and the future EU-UK relationship.
The EU Treaties would cease to apply to the UK either:
a) from the date of entry into force of the withdrawal agreement; or
b) failing that, 2 years after the formal notification described above, UNLESS the European Council, in agreement with the Member states, UNANIMOUSLY decides to extend this period.
Domestic constitutional requirements
3. A crucial aspect of the Article 50 procedure is the legal requirement that the Member States wishing to withdraw form the EU should do so in accordance wit its own constitutional requirements.
In the UK this would normally mean the passing of an Act of Parliament. No such process has begun as of yet.
Recently it has been suggested that an Act of Parliament is not required as the Prime Minister can resort to the use of prerogative power, a set of executive powers nominally held by the Crown but in reality exercised by the Government. These are often used in foreign affairs.
What all experts seem to agree on, however, is that Parliament would at least need to be consulted given the seminal importance of the issue.
All predictions as to what happens next are entirely speculative.
What seems most likely from a political perspective is that the UK would trigger the leave process but will seek to negotiate an agreement with the EU that allows for some involvement with the common market and free movement.
It also seems likely that EU nationals currently resident in the UK would retain their right to reside and work in this country, albeit under a different immigration status. There are some 3 million EU nationals in the UK who all came here legally and depriving them of their rights retrospectively goes against the most basic legal and moral principles. Furthermore this would jeopardise the status of UK nationals living in Europe.
However it is possible that it might become more difficult for EU nationals to qualify for settlement. The position of third-country national family members of EU nationals might also be adversely affected.
EU nationals – what you should do NOW to protect your rights
The only thing we know for sure at this point is that the referendum has no immediate legal consequences. EU law and any relevant domestic legislation continues to apply and EU nationals living in the UK have the same rights as before.
However I would advise anyone who qualifies (i.e. has 5 years continuous residence in the UK) to make an application for an EEA residence permit. Do not leave anything until the last minute as the political situation is unstable and unpredictable. You may also be eligible to make other types of application depending on your personal circumstances.
If you have any questions or would like to discuss your legal options, phone us to book a consultation with a specialist direct access immigration barrister. We are flexible and our consultations can take place in person, over the phone or via Skype.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, WC1r 5ET, he also practises from Goldsmith Chambers, the chambers of Anthony Metzer QC and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to litigate and to provide advice and representation directly to the public.