Immigration was a key focus during the run-up to the recent EU referendum, with the Leave Campaign making the case for the need to control the overall number of migrants entering the UK to live and to work. Our Immigration team considers the impact of Brexit on business immigration. What changes are expected and what can employers do to protect themselves now?

The UK already has in place a points-based immigration system for migrants from outside the European Economic Area but, under the current system, EEA migrants have the ability to work freely in any of the EU's 28 member states, and so the UK cannot limit the number of EU migrants moving to the UK to work.

The historic vote has created a great deal of uncertainty for employers of the 2.2 million EEA workers currently in the UK (and of the course for the migrants themselves), and for those UK nationals currently living and working in the EEA.

What is the immediate impact?

The future impact on UK immigration remains to be seen but, for now and for as long as the UK remains a member of the EU, EEA nationals will be able to continue to exercise their right of free movement.

The recent press reports of EEA nationals living in the UK being subjected to threats and acts of racism in the immediate aftermath of the results of the referendum are bound to be a concern to employers (and we have produced a briefing for employers on this issue).

However, there is no immediate change to the immigration status of the EEA migrant workforce based in the UK and, for those employers with operations in other EU member states, to those UK citizens living and working in any of the other 27 EU member states.

What is the future impact?

Whether the UK's relationship with the EU going forward is based upon the "EEA model", the "Swiss Model" or the "WTO model", it is hard to imagine a scenario at this stage whereby there will not be at least some kind of arrangement (perhaps not full free movement) in respect of EEA migrants, but precisely what that will be is likely to remain unclear for some time.

There are, however, steps that UK employers and their EU migrant workforce may consider in the meantime to help protect their position, whatever the outcome of the lengthy and difficult negotiations expected in the months and years ahead:

  • Employers may consider a sponsor licence application under Tier 2 of the Points Based System. Tier 2 sponsor licence holders are able to sponsor skilled, sponsored, non-EEA migrants, provided they satisfy the eligibility requirements of Tier 2. Depending on the immigration arrangements that will be implemented post-Brexit, holding such a licence could enable employers: (i) to continue to employ their current workforce (if the current points-based system is extended to EEA migrants); or, (ii) if employers find that they need to replace EEA migrant workers, and are unable to source specific skills in the UK, to source workers from overseas.
  • Migrants themselves may wish to consider how best to "shore-up" their status in the UK. The most obvious route for long-stayers would be an application for permanent residence (for those who have been in the UK continuously for at least the last five years) or even British nationality (provided they have permanent residence, and have considered with an immigration adviser the impact that this may have on their status as a national of any other country). Even if a migrant has been in the UK for less than five years, they should strongly consider applying for a Registration Certificate which shows that they are exercising their Treaty Rights in the UK, in case this becomes relevant following the outcome of the negotiations. If employers wish to discuss these possibilities with their own EU national workers, it is important that they do so in a non-alarmist and sensitive way and that they are conscious that changes in citizenship and residence may have unintended consequences for that individual and their families, so they should consider taking advice before taking such steps.

There will inevitably be a strong focus on free movement and immigration generally during the negotiation phase to come. Whatever the outcome of those discussions, employers should give careful thought to protecting continuity in their business and ensuring they are well-placed to meet the challenges that Brexit might pose with regard to the status of key individuals in their business and the stability of the workforce generally.