According to the new Prime Minister, Theresa May, “Brexit means Brexit” and, over the coming months, the UK government looks set to trigger the process of disentangling the UK from the various laws and procedures associated with EU membership.
There are inevitably a multitude of questions and concerns on the part of employers regarding how the potential loss of free movement of workers between the UK and EEA countries (EEA: the European Economic Area which includes EU countries plus Norway, Liechtenstein and Iceland) might affect business or give rise to wider immigration implications in due course. Even so, it is important to stress that, with respect to EU principles of free movement, there will be no change until the UK actually ceases its EU membership. Even triggering the exit process under the EU mechanism of Article 50 gives rise to an anticipated two year period of negotiation over what might replace current EEA immigration arrangements.
Whilst the Brexit process emerges and for the foreseeable future, employers can assume that citizens of EEA countries can continue to work freely in the UK, just as before the EU Referendum. In other words, those working in the UK already may continue to do so and those wishing to come to the UK to work remain able to do so, without restriction.
In the questions and answers which follow, we have sought to address some of the more immediate issues employers may have and to share our thoughts, taking into account the inevitable political and legal uncertainties at present. There are some issues which employers should start to think about now and to plan ahead. Where we would advocate taking steps in the short term, therefore, these are highlighted below.
Q: Can we still employ a citizen of an EEA country?
A: Yes. Nothing changes in respect of immigration law, or is likely to, until the UK leaves the EU (which may be at least two years away, although uncertainty exists over this timing). At the moment, citizens of the EEA can work freely in the UK, as before the EU Referendum. You should continue to make the necessary right to work check on these employees before they start employment.
Q: Should we change our recruitment policy now in respect of EEA citizens?
A: Undoubtedly, there is a question mark over how the rights of EEA nationals will be affected in the future. However, any changes to the principle of free movement, if made, are some way off and arguably still too uncertain to cause radical alterations to recruitment strategies as yet. Furthermore, whilst the status quo prevails, employers taking steps to reduce access to employment for EEA nationals run the risk of unlawful discrimination.
In the interim, check that all offer letters and contracts of employment contain “right to work” clauses to support a contractual basis for change, if this is needed in the future.
Q: What should employers be thinking about now in relation to immigration issues?
A: In the upcoming months and in the absence as yet of any real certainly, below are some steps employers may wish to consider as precautionary measures, or simply to reassure their staff:
Audit: Ensure you know who your EEA national employees are, together with any British workers based in other EEA countries. Identify all new EEA recruits for ease of communication in the future.
Assess: Is there an area of the business that is affected disproportionately? Is this a business critical role or a hard to recruit area? How will a worker’s immigration status be affected (for example, have some already got permanent residency etc?). What if EEA nationals choose to leave before Brexit –will you be prepared?
Communicate: Have you communicated any messages of reassurance to your work force or let them know where they can obtain further information and how to voice concerns? Consider gathering common questions and circulating answers.
Support: For critical employees from the EEA particularly, should you be proactive in explaining or supporting applications for permanent UK residence or exploring other options? Consider offering guidance, or access to external advice, on residency/citizenship and workers’ options.
Review: Check engagement documents and contracts of employment for adequate “right to work” clauses (as above).
Q: Would short-term seasonal and low-skilled workers from EEA countries still be employable in the UK after Brexit?
A: There is not enough information about the terms of the UK’s exit from the European Union to assess the potential impact upon this group of workers. An agreement to continue free movement between the UK and EU would allow this, but failure to reach an agreement and the possible imposition of current UK immigration rules (as applied to non-EEA nationals), would be likely to restrict such recruitment severely.
However, given the UK’s need for low skilled labour it is likely that Tier 3 of the UK’s Points Based System would be opened or a new structure designed. If, as a business, you rely on seasonal and/or low skilled EEA labour, you may wish to start contingency planning, such as exploring whether alternative workers might exist within the UK, even if the need never arises to action it. In any event, expect government clarification and a period of notice before any changes become effective.
Q: Will UK citizens still be able to work in current EEA countries when the UK leaves the EU?
A: Free movement applies to UK workers wanting to live and work in EEA countries, just as much as to EEA workers coming here. The right to free movement as it exists now may cease to exist when the UK leaves the EU, unless arrangements are made between the EU and UK as part of a new relationship going forwards. It is fair to assume that any arrangements will be reciprocal.
If no revised arrangements are able to be agreed, post-Brexit, movement of workers will still happen –but will be restricted according to permission being granted to work in the relevant country under local immigration law and relevant work permit or visa requirements. Eversheds has offices across the EEA and can provide local immigration advice.
Q: Will Brexit affect non EEA citizens currently in the UK or future hires?
A: No obvious immediate change is likely to result. It is conceivable that all immigration rules (affecting both EEA and non EEA citizens) may be reviewed if the UK does introduce controls for EEA workers. However, a restriction upon the rights of entry of EEA workers could also assist in meeting the Government’s current net migration target, which may eventually mean that current restrictions upon non EEA workers and dependant relatives might be reduced.
Q: Coming to the UK now seems unattractive to EEA workers and students who may be concerned about their longer term future. Can I assure them they will be able to stay throughout the assignment or course?
A: The degree of uncertainty surrounding leaving the EU and whether to replace free movement, make it impossible to predict if or when change will arise. Short term courses or assignments are unlikely to be affected. Longer term, this is a harder question as, although exit negotiations may give a landscape in which we will operate, the fine detail will affect each migrant differently.
Q: I have heard that EU nationals should apply for permanent residency. Will that secure their future in the UK?
A: At the moment EEA nationals do not need to apply for an UK visa or register to live and work in the UK. Permanent residency happens automatically for eligible EEA nationals who meet all relevant criteria. However, since 2015, applying for a permanent residence card has been a prerequisite for EEA nationals wishing to apply for British citizenship. Being a British citizen will obviously avoid the impact of Brexit in terms of ability to live and work in the UK.
As for residency in the UK, EEA nationals who have lived in the UK for five years whilst working, studying, actively seeking work or being self-sufficient may apply for permanent residence. There is no guarantee that those who have obtained a permanent residence card (but not British citizenship) will have any preferential status at the date of Brexit but, as the application costs £65, it may be seen as a worthwhile step.
Permanent residence takes about six months to be considered but it is possible to request the return of documents during the application process, without impacting upon the application itself.
Q: When can an EU national apply for British Citizenship?
A: After a period of 12 months from the date on which they have been exercising rights in the UK for five years, an EU national is eligible to apply for British citizenship. There are other criteria for citizenship, all of which must be met. It is not normally necessary to surrender original citizenship to obtain a second.
Q: What about British nationals living in Europe – are there permanent residency and citizenship options for them?
A: Each EEA country has its own requirements for citizenship – in Germany the requirement is eight years’ residence, whereas in Sweden, it is five years. As one would expect, there are other conditions but, any British national currently living in Europe and wishing to make their future more secure, should explore local requirements.
Q: How will seconding employees to the EEA from the UK (and vice versa) change following Brexit?
A: This will depend on the immigration system introduced post-Brexit. If the UK was to have similar freedom of movement provisions to those existing now (such as EEA membership), there would be little change. It not, permission to work may be required both for those entering the UK and British citizens working in the EEA.
At the moment UK nationals (along with all EEA nationals) are attractive candidates for roles with an EEA wide remit as there is no need to worry about right to work issues in multiple jurisdictions. Depending on the outcome of the negotiation this ease may be impacted for UK nationals.
Q: How will business travellers be treated when visiting the UK post Brexit?
A: As above, this will also be determined by the negotiation of Britain’s exit, whether free movement continues and the nature of the immigration system post Brexit. In the absence of free movement, it is possible that business travellers may require permission to enter the UK.
Q: What will be the status of Irish citizens working in the UK?
A: The Common Travel Area arrangements between the UK and the Republic of Ireland pre-date either the UK or the Republic of Ireland joining the EU, with free movement between the countries dating back to Irish independence in 1922. The UK’s Immigration Minister has advised that both the British and Irish governments wish this to continue and there seems little likelihood, at this stage, of any new restrictions other than the possibility that a border check may be introduced.
Q: Some have mentioned than an Australian-style points system may be introduced – what do I need to know about that?
A: The current non-EEA immigration system in the UK was originally styled as being Australian and points-based. In practice, it simply means that there are a series of rules which regulate who may work in the UK. The Immigration Minister has advised in the Home Affairs Parliamentary select committee that any new system introduced may not be points–based, so it is too early to assess what the impact of a new system may be.