The UK is now on countdown to the first step in exiting the European Union, with the date for triggering Article 50 of the Lisbon Treaty set for 29th March 2017.

Once Article 50 has been triggered, many Italian employers in the UK will be hoping Theresa May keeps to her promise and makes it a priority during Brexit related negotiations to secure the future rights of EU citizens to remain in the UK.

Until this issue is decided, Italian businesses in the UK face uncertainty regarding their future workforce and many Italian nationals will continue to live in limbo which could impact morale and productivity.

The good news is that there are strong indications that after the UK leaves the EU in March 2019 the Government will grant a form of permanent residence to those who have resided in the UK for at least five years as a qualified person, i.e. as a worker, self-employed, self-sufficient, student or job seeker prior to a particular cut-off date, which is yet to be determined. This could be when the UK eventually leaves the EU but there is a distinct possibility it could be sooner – possibly even on the Article 50 trigger date of 29 March 2017. It is hoped that EU citizens who have been living in the UK before the cut-off date but have not yet completed five years as a qualified person will be given temporary permission to stay in the UK after Brexit and given the chance to complete the five-year period.

What can Italian employers do now to help their employees?

To ease employees’ concerns and help plan for the future, employers may wish to conduct an audit of their EU employees (and family members of EU nationals) to ascertain whether they can meet the current five year residency requirements.

As part of this process, employees should be encouraged to collect documents evidencing their employment status and periods of stay in this country. Employees will need to show for example that they have not spent more than six months outside the UK in any 12 month period over the five years relied upon.

Some employers wish to offer their EU staff access to immigration advice to help them process applications under the five year residence criteria or in other circumstances where individuals qualify under 10 year long residence rules or other immigration categories. Staff may also be concerned about the implications of Brexit for their dependents and other family members and are considering their future in the UK on this basis.

An audit doesn’t necessarily provide all the answers yet, but it will at least help to identify gaps and issues for when the residency position is clarified.

Mind the traps

When planning for the audit, employers will need to be mindful of their duties under discrimination and data protection legislation. Taking a little time to plan an audit will reduce the risk of legal breaches and is likely to make the process easier to manage practically. Most employers will need the co-operation of employees to obtain the information they need (and in some cases the co-operation of other staff, contractors and family members as well). Workforces are not static and it may be necessary to conduct more than one audit. Careful communications should ensure that necessary consents are obtained efficiently, and the risk of race claims and data protection breaches is reduced. More importantly, by careful planning and communication, staff are more likely to understand the rationale for the audit, and to appreciate that their employer is trying to help them as well as the business.

The best practical approach to an audit, and practical steps that flow from the information gathered, will depend very much on the business context. A “one-size fits all” approach is unlikely to work effectively and it is important to consider questions first such as:

  • Is there high staff turnover?
  • Would it be easy to reallocate tasks, recruit replacements or relocate work abroad?
  • How long might that take?
  • Are some parts of the business more vulnerable than others?
  • Who are the key people? Is in-house data protection compliance already strong?
  • Is a limited audit likely to offer sufficient information?

The usefulness of the data gathered will depend very much on the questions asked – and those questions must be tailored to the business context.

What should qualifying employees be doing now?

A case can certainly be made to encourage individuals to apply to the UK authorities for a registration certificate or, if they have already been in the UK for five years, a document certifying permanent residence. These documents do not in themselves confer any rights but at the very least do provide evidence that the Government has acknowledged the individual is exercising their right of residence or has acquired permanent residence.

In addition, if an individual has been living in the UK for at least six years, they could consider applying to the Home Office for naturalisation as a British citizen after obtaining a document certifying permanent residence.

What about Italian employees arriving to work in the UK after Article 50 has been triggered

Italian nationals arriving in the UK after the Article 50 trigger date may not be able to benefit from any transitional arrangements which are expected to be implemented to protect EU nationals already living and working in the UK now.

Employers will need to consider employment contract terms carefully for these individuals to ensure that the role is sufficiently attractive and that risks associated with loss of the right to work in the UK are appropriately managed. This might, for example, include provision for assistance with relocation expenses or seeking alternative immigration clearance.

Conclusion

We know that many employers are adopting a “wait and see” approach to Brexit preparedness. It is, of course, perfectly valid for employers to await the outcome of negotiations regarding the future status of EU nationals already resident here before communicating with their workforce on such. However, organisations who regularly employ many overseas staff may find advance warning on their resourcing and potential vulnerabilities helpful. Employers can benefit from a proactive approach when it comes to immigration planning for their workforce.

Sadly, where employers won’t yet be able to provide much guidance is for employees with less than five years’ residency. It is possible that they may only be eligible to remain in future if they are highly skilled and can be kept here on a quota basis. It will be interesting to see if this is an area where Theresa May surprises us all after triggering Article 50.

The author is Ilda de Sousa, partner in the immigration team at Kingsley Napley LLP in London.