Measures facilitating British citizens’ staying in Sweden in case of a no-deal Brexit

The proposed measures are the following:

• A time limited regulation that will allow UK citizens and their family members who will lose their right of residence or permanent right of residence due to the UK’s exit from the European Union to be exempt from the residence and work permit requirements. The proposed measure is that the regulation will be applicable for one year and that the Migration Agency shall, upon request, issue proof of exemption from the requirement for residence and work permits.
• A change in legislation from the Government that will allow British citizens and their family members to apply and have their residence permits granted after entering Sweden.
• An adaptation of the rules governing the right for third country nationals to obtain their permanent residency permits, which implies that British citizens and their family members with proven right of residence pre-Brexit would be allowed to count the time spent in Sweden for the purpose of obtaining a permanent residence permit.

It is proposed that the time-limited regulation, which primarily aims to halt the immediate consequences that a no-deal Brexit would entail, will enter into force the 30^th of March 2019. The proposed legislative amendments are recommended to enter into force on the 1^st of July 2019.

Background

The UK’s exit from the EU formally started in March 2017 when the UK Government sent in their withdrawal request in accordance with Article 50 of the EU treaty (TEU). According to article 50 TEU, the UK’s participation in the EU shall cease to be valid two years after the notification to the European Council is made. The deadline is the 30^th of March 2019.

Since March 2017, discussions have taken place between Great Britain and the EU to agree on a series of questions relating to their future relationship. Among other things, issues concerning trade agreements, the economic effect of the exit, the UK’s financial settlement with the European Union for the exit and the free movement of individuals have been discussed. In connection with these discussions and attempts to reach an agreement, they have also discussed what would happen if no agreement on the exit would be reached – the so called no-deal Brexit.

Negotiations on the conditions for withdrawal have been ongoing since June 2017 and on the 15^th of January 2019 the British Parliament voted against the exit agreement drawn up by the EU and the UK government. In the current situation there is therefore a very high risk that we are moving towards a no-deal Brexit that will significantly affect both the UK and the EU member states.

From a migration law perspective, a no-deal Brexit would mean important changes for the EU citizens who currently live in the UK and also for the British citizens who currently live in the EU. Today, there are about 20 000 British citizens living in Sweden. Most of these people are presumed to be resident in the country based on the EU regulations which grant them the right of residence. These British citizens are also covered by EU regulations on free movement, implying a comprehensive right to enter, reside and work freely within the EU member state territories.

With the UK leaving the EU, British citizens will no longer be granted free movement within the European Union. In the event that no agreement is reached, British citizens will be covered by the regulations that currently apply to third-country citizens.

Upon request of the Commission, the Swedish Government has put forward proposals for a time-limited regulation and legislative amendment aimed at introducing a generous approach to British citizens who are already resident in Sweden today. The proposed changes also aim to mitigate the most serious consequences of the exit from the EU and are based on the contingency plan developed by the Commission. The proposal that has been made, however, primarily aims to solve the pressing situation that arises in the event of a no-deal Brexit. In due time a more long term solution will most likely be discussed.

Proposed changes

The proposal for exemptions from residence and work permits that has been developed is aimed at British citizens who lose their right to reside in Sweden as a result of the UK’s exit from the European Union. People who are covered by this exemption are British citizens who have used their right of residence and to their family members who live in Sweden at the time when the UK will leave the EU. The proposal is also aimed at those family members who are third-country nationals but who meet the requirements of relatives of a British citizen who has a right of residence. The British citizens who, at the time of the exit, do not live in Sweden or do not meet the requirements to be granted the right of residence at the time of the exit, will not be covered by the exemption. Consequently, their family members will not be covered by this either. Hence, those people who come to Sweden after the 30^th of March 2019 will have to apply for a residence and work permit directly.

The British citizens who are covered by the exemption may request a certificate from the Swedish Migration Agency confirming that they have the right to work and live in Sweden during the transition period. The certificate can also be used to travel within other EU Member States but, at the moment, it seems that this will only cover British citizens and not family members who are third-country nationals. This means that family members who are third-country nationals and who today have the right of residence as a family member of a British citizen with a right of residence cannot obtain a certificate that allows travel within the EU. However, some third-country nationals are visa free and have a greater opportunity to travel within the EU without a visa.

The details of the process to issue the certificate are not yet established. According to the proposal, however, the certificate will be attached to the passport.

Due to the fact that the regulation on the exemption from the requirement to have work and residence permits will only last one year, British citizens who have the right of residence and their family members will need to apply for a work and residence permit for Sweden during the transition period.

The main rule today is that a residence permit must be applied for and obtained before entering Sweden. Since many British citizens and their family members are currently legally resident in Sweden due to their right of residence, the consequences would be far too great if they would have to travel out of Sweden to apply for a residence permit. It is therefore proposed that these individuals should be given the opportunity to apply for work and residence permits while being in Sweden, which constitutes an exception to the main rule. However, it has not yet been determined what type of residence and work permit is going to be issued.

The proposal also contains an adaptation of the provisions for long-term residents, where British citizens can include periods where they have been resident with a residence permit or otherwise legally resident in Sweden if they wish to apply for permanent resident status.

Deloitte’s comment

The Government’s proposal entails a respite for British citizens and their family members who currently work and live in Sweden. The regulation enables them to continue to work and live in Sweden even in the event of a no-deal Brexit.

In the event that an exit agreement between the EU and the UK should not be reached, the regulation gives Sweden the additional time needed to resolve the status of British citizens and their family members in Sweden on a longer term basis. There is a strong possibility that a special category of work and residence permits only for British citizens will be set up.

With the increased risk of a no-deal Brexit, it is therefore important that British citizens and their family members check that their right of residence is fulfilled and that this has happened before the 29^th of March 2019. It is also important that companies with employees in Sweden who are British citizens look into the possibility that an application for a residence and work permit would be required so as to ensure their right to continue working in Sweden.

For those who plan to move to Sweden after the 29^th of March 2019 it is recommended that they apply for a work and residence permit now, as it may take some weeks for it to be granted. This could be the case even if the application is sent via certification, with shorter processing times.

Deloitte will monitor the development of the Brexit negotiations and the memorandum sent out for referral. A no-deal Brexit is not yet a reality as other alternatives are still at the disposal of the British Government, including a renegotiation of the exit agreement between the UK and the EU, a new political election which would provide a new Government in the UK and therefore a chance to recommence the negotiations, or the alternative that could be most interesting: a new referendum.

As said during the almost two years of negotiations regarding Brexit:

– Nothing is agreed until everything is agreed.