Last week the UK voted to leave the European Union. EU nationals, their family members and their employers will be concerned about what happens next. Until the UK actually leaves the European Union EU nationals and their non-EEA family members* should continue to enjoy the same freedom of movement rights that have meant that they have been able to live and work in the UK without restriction to date. They should not need any additional approvals and employers can rely on the right to work checks that they have already undertaken to continue to evidence their European employees’ right to work in the UK.
* if they are considered to be family members under the regulations currently in force
What will happen next?
Negotiations on the UK’s exit arrangements won’t begin until the UK triggers Article 50 of the Lisbon Treaty. The Prime Minister has confirmed that this will not happen under his leadership and the time line for the appointment of a new prime minister is October 2016. It will be up to the new prime minister to then trigger Article 50 which will start a two year period of negotiations to negotiate the terms of the exit from the EU with the remaining Member States. During that time, whilst the UK remains a member of the EU, EU migrants and their families will continue to have the right of free movement.
What can EU migrants and their families do to secure their status in the UK?
EEA nationals who have been exercising Treaty rights (as a worker, student or self-sufficient person) for a continuous period of five years or more will have already acquired the right of Permanent Residence. It is very unlikely that this right will be removed whilst the UK remains a member of the EU. We do, however, recommend that such individuals apply for a Permanent Residence Card to evidence this right as soon as possible and in any event prior to the UK leaving the EU.
We do not yet know what conditions the government will place on EEA nationals who have not acquired permanent residence at the date of an exit but this is likely to be an important part of the negotiations with the remaining Member States.
At this stage we do not anticipate Brexit having any significant implications on the Immigration Rules relevant to non-EEA nationals but a major overhaul of the entire immigration system should not be ruled out.
Impact on employment law
Again nothing is expected to change until the UK actually leaves the EU. While Brexit is likely to have implications on employment rights these are unlikely to be substantial (at least in the short term) and we do not anticipate that we will lose many of the employment protections introduced by EU (such as maternity leave, paid annual leave and protection from discrimination on the grounds of religion and belief). In addition to being incorporated into UK domestic legislation these rights are so enshrined in our culture it is unlikely that a government would choose to remove them.
There are, however, other areas in employment law for which the future is uncertain. In particular we expect that we may see changes to the recent changes in the law relating to the right to accrue annual leave whilst on sick leave and the right to be paid additional holiday pay to reflect overtime and commission, but we would need to wait for Parliament to enact primary legislation or further judicial decisions to know for certain.