five year residence break
possible after Brexit

15 December 2017

The joint report issued last week by the negotiators of the European Union and the United Kingdom government set out the progress made during phase one of negotiations on the United Kingdom’s withdrawal from the European Union.

One of its fundamental aims recognises the need to provide reciprocal protections for those Union and UK citizens exercising existing rights of residence within a host Member State at the time of the UK’s withdrawal.

With the UK set to leave the Union on Friday 29 March 2019, all EU citizens who legally reside in the UK on this date will therefore fall within the scope of the final agreement.

The framework for the agreed transitional provisions will follow many of the conventions set out in the European Parliament Directive 2004/38. However, one documented revision should provide some solace to those lamenting the end to free movement.

Currently, European law states the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

However, the joint report indicates EU nationals and their family members covered by the Withdrawal Agreement will be able to be absent from their Member State of residence for up to five years without losing their right to return.

We will have to wait to see how this works in practice but, effectively, an EU citizen holding the right of residence at the time of Brexit could leave the UK until 2024 and still be entitled to re-enter to reside in this country.

Whilst this small concession is welcomed, it may not be perceived as such until long after the UK has left the European Union and new immigration controls on EU citizens are in place.

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