On 29 March 2017, Theresa May triggered Article 50 and formally started the Brexit process. This was followed by the publication of the Government’s White Paper to the Great Repeal Bill on 30 March, together with guidance to business setting out its long awaited thoughts on the framework for the UK’s withdrawal from the Europe Union. Whilst these steps will not in themselves immediately alter the rights of EEA nationals to live and work in the UK. the right to free movement for those EU nationals currently living here and those who may come to the UK in the future will be a key area of negotiation over the next two years.
Safeguarding EU nationals’ rights to continue to live and work freely in the UK features prominently in the White Paper. In guidance to businesses issued with the White Paper, the Government seeks to reassure EU nationals and UK employers that there has been no change to their rights and status in the UK as a result of the June 2016 referendum and that until the UK leaves the EU they will continue to have the same rights to live and work here. It notes, however, that the way in which UK businesses will be able to employ EEA nationals following Brexit is a matter for discussion in negotiations.
Whilst there have been no legal changes to the rights of EU nationals so far, there has been a visible practical impact. Data from the Office of National Statistics has shown that the number of EU nationals entering the UK almost halved from an average of over 60,000 per quarter in the nine months to June 2016 to around 30,000 between June and September 2016. There are around three million EU nationals currently living in the UK and they are a key part of the workforce in many sectors. The Financial Times reports that some 360,000 EU workers are employed in British finance and 442,000 work in retail and hospitality.
Whilst no firm policy decisions have yet been reached, UK employers (many of whom are reliant on EU national workers) may wish to consider the likely immigration implications for their workers and what they can do now to address these.
- What has changed?
Nothing. The UK remains a member of the EU – EU and British citizens retain the automatic right to work in any EU country without immigration permission. The UK will leave the EU by March 2019 unless an extension of the deadline is agreed by the other 27 EU member states.
- What are the rights of EU citizens already working in the UK?
EU workers in the UK can continue to live and work here and EU citizens can still relocate to the UK without a visa. There are no suggestions of ‘expulsion’ of EU workers and if the UK did seek to do that it could face legal action from EU citizens, businesses and the EU itself.
The unknown however remains the future status of EU workers already in the UK following Brexit. We believe they will have the opportunity to confirm their UK immigration status but the mechanics of that process including the cut-off date, need to be determined through negotiation. The Prime Minister has made clear she is unlikely to agree free trade arrangements with the EU in exchange for financial contributions to the EU and accepting full free movement of workers.
- What can you do to safeguard your EU National Workers’ UK status?
EU citizens and their family members who have been in the UK for five or more years exercising treaty rights (such as by working or studying) can apply for UK permanent residence (PR) as a destination in its own right or a stepping stone to British citizenship. In October 2016 the Home Office rolled out on an online application process and linked passport checking service to streamline this process (which can take up to six months).
EU citizens who are not eligible for PR can apply for an EEA registration certificate to evidence their current right to live and work in the UK. Again there is now an online system to speed up this process.
Employers may wish to proactively support their workers by, for example, paying the £65 application fee for each route. Those with a low number of affected employees could offer assistance with the preparation and submission of applications (which may, depending on the employee’s circumstances, be complex). For employers with larger numbers of affected staff this may not be cost effective but they could, instead, offer a drop in clinic to assist with queries and template documents and guidance.
Workers who hold permanent residence for at least 12 months can apply to naturalise as a British citizen, which will provide a right to a British passport. Those with children born in the UK may be able to apply for a British passport for those children more quickly depending on their circumstances. Applicants should first establish the impact of such an application on their, and family members, original country status with regards to citizenship, voting, military service and tax.
- What about the future?
After Brexit, EU nationals relocating to the UK will need to comply with whatever immigration rules the UK introduces. If free movement of workers is removed, it is possible that a new “points-based system” (PBS) will be introduced resembling that currently in place for non-EU nationals. It would require workers to apply for a work visa overseas before starting UK employment, to be suitably skilled and to be paid a minimum set salary.
Studies show that most EU workers in the UK would not meet those conditions. To ensure the UK continues to have access to lower skilled workers in sectors like construction, hospitality and retail, there may need to be different arrangements put in place for EU employees. One option is the dormant Tier 3 of the current PBS.
We recommend employers also consider the training currently offered to existing staff to address skills gaps and future needs. Could you, for example, offer more apprenticeships utilising the new Apprenticeship Levy scheme which has just been introduced from April 2017? See March’s Law at Work for an article on the levy.
Part of this article has previously appeared in Employment Solicitor