Immigration was, for many ‘Leave’ voters, the central issue in the Brexit Referendum.  Our membership of the European Union (EU) automatically subscribes the UK to the free movement of persons within the EU (Free Movement), leading to concerns regarding uncapped immigration to the UK. 

However, the UK’s decision to leave the EU has left many people scratching their heads regarding the UK’s future positon on EU immigration. 

Free Movement allows citizens of EU countries, and certain other European countries (discussed below) to move freely to other European countries, whether on a short-term or a more permanent basis. Until the UK actually leaves the European Union, Free Movement shall continue.  However, the position post-Brexit is far from clear and depends on the relationship agreed with the remaining Member States.  There is no precedent for a European country to have an agreement with the EU which affords access to the single market, but not be subject to Free Movement.  

Several structures for the UK: Europe relationship have been proposed, each of which would have a different impact upon the current Free Movement arrangement.

Post Brexit

Despite the promises made by the ‘Leave’ campaign to introduce a ‘Points Based Visa System’ (PBS) for European Migrants, a departure from the EU would not automatically mean the end of the Free Movement principle. 

  • EEA

Assuming Article 50 is triggered and Brexit goes ahead (and, so far, Government has indicated this will be the case), the preferred option for many ‘Remain’ campaigners would be that the U.K. applies to be a member of the European Economic Area (given the perceived economic advantages that this would involve).  If successful, our relationship with the EU bloc would therefore be akin to that of countries such as Norway, Liechtenstein and Iceland, and would allow the U.K. to have continued access to the Single Market.  Unless the current rules change to accommodate U.K. membership, a consequence would, however, be that Free Movement would continue.  This would, in practice effectively mean that Free Movement is retained in its current guise and would no doubt prove unpopular with many ‘Leave’ supporters.

  • Bilateral Agreement

An alternative would be for the EU and the UK to reach a bilateral agreement, in a similar way to that held with Switzerland. Switzerland, however, is also subject to and benefits from the Free Movement principle under the Schengen Agreement. 

So far, indications from Brussels suggest that if the UK wants to retain its access to the Single Market, removal from the Free Movement principle is not an option.  It remains to be seen whether the UK’s negotiations will succeed, particularly given what the UK may need to concede to allow continued participation in the Single Market and lucrative trade arrangements. 

  • Free Trade Agreements

A further option would be for a more limited relationship, primarily based on trade agreements, as is the case for the US, Canada and Japan.  The terms of this relationship would need to be negotiated (and would be unlikely to be as economically attractive for the UK), but would likely leave the UK open to implement its own immigration system. 

The Leave campaign indicated that, once free from Free Movement, its preference would be to introduce a Points Based System (PBS) for current EU citizens.  A PBS already exists in the UK for non-EEA migrants (primarily those seeking work in the UK), with applicants scoring points for categories such as salary and English language skills.  The Government has been heavily criticised for its unfulfilled promise to cut migration to ‘tens of thousands’ and tightening the existing PBS has failed to deliver.  A PBS for European citizens would therefore need to be sufficiently restrictive in scope in order to have any significant effect.  We assume that a single consolidated PBS for both European and non-European migrants would be the ultimate aim in such circumstances. 

Removing ourselves from Free Movement would, of course, have a reciprocal effect on UK citizens wishing to live or work in any of the remaining EU Member States.

EU Migrants already in the UK

The position in relation to the 3 million EU migrants already in the UK also remains unclear.  It is widely anticipated that transitional arrangements will be implemented, allowing individuals to stay in the UK post-Brexit.  However this could be limited to those already in the UK for a certain period of time.  

It is also likely that the next two years could result in a significant increase in EU migrants arriving into the UK, before any potential immigration restrictions are implemented.  A significant increase in migrants coming to the UK during such a period could have an impact upon the rates and limits imposed in any subsequent PBS.

Scotland

Following the strong Remain vote in Scotland, the SNP has mooted the prospect of holding a further independence Referendum and Nicola Sturgeon has held talks in Brussels with a view to (in her words) “protecting Scotland’s position as a member of the EU”.  If Scotland leaves the UK, it might become a Member State in its own right.  Consequently, it would remain subject to the obligations and benefits of Free Movement (possibly including additional Schengen obligations) and might see an influx of EU migrants as a consequence.  

It is also worth noting that the SNP’s White Paper on independence (released prior to the 2014 referendum) highlighted that Scotland’s immigration needs are significantly different to the rest of the UK.  If Scotland remains part of the United Kingdom and is part of a PBS immigration system for European migrant workers, it is quite possible that the Scottish Government may push for a number of amendments to the operation of such a system in Scotland.

What can employers do now?

Employers will understandably have concerns regarding the employment of EU citizens following the vote to Leave.  However, until the UK’s future relationship with the EU becomes clearer, there are limited steps that employers can take to safeguard the immigration position of their EU workers.  Needless to say, employers should be careful that any action taken does not give scope for discrimination claims by such workers on the basis of their nationality, or ethnic or national origins.

It is clear that there is no immediate threat posed by Brexit, as Free Movement will continue until the UK is no longer a Member State.  The position in the longer term is uncertain and may be for some time. One step that employers may wish to consider is to encourage their EU workers who either do not have a Registration Certificate, Permanent Residence Card or are not British citizens – but currently meet the relevant criteria – to apply for one of these in order to seek to protect their future position in the UK workforce.