Despite the uncertainty surrounding Brexit, there are some steps employers can take now in order to retain their existing workforce in the UK.

The EU referendum has caused a lot of concern amongst EEA nationals and their employers as to what their position is in the UK and what will happen when the UK exits the EU. This is clearly an important issue for many SMEs, especially as sponsorship of overseas workers through the UK’s Points-Based System becomes increasingly expensive.

Importantly, free movement will continue to apply until the UK formally leaves the EU. This process was started on 29 March 2017 by the UK Government giving notice under Article 50 of the EU treaty. There now follows a two year negotiation period, which could be extended by agreement of all Member States. The earliest the UK would leave the EU is the end of March 2019, until then EEA nationals are still free to work in the UK.

The UK Government has clearly stated that it wishes to control migration from the EU, whilst still attracting those whom it considers have the most to offer the UK. It is highly likely therefore that the UK will introduce some measures to restrict free movement. It is also possible that it will be harder for employers to recruit EEA workers following Brexit.

Action points

Very important

  • Employees should apply for permanent residence if they have lived and worked lawfully in the UK for a continuous period of 5 years (it may also be possible to apply if they have lived in the UK for 5 years but not worked for the full period).
  • Permanent residence is confirmation that the EEA national has indefinite leave to remain in the UK and they are a permanent resident of the UK. It would be very difficult for the UK to go back on this status so this means when the UK exits the EU the EEA national will be a permanent resident of the UK recognised under UK law. They will therefore not be subject to any immigration control on their right to reside and work in the UK.
  • British citizens who are living and working in another EEA member state should also be able to qualify for permanent residence in the same way an EEA national would qualify in the UK. The process will vary slightly from country to country but the principles are the same.

Important

  • For employees who have not worked in the UK for 5 years, it is advisable for EEA national employees to apply for a document called an EEA Registration Certificate. It confirms their status under EU law and that they have a right to reside and work without immigration control. When the UK exits the EU it makes it easier to show that they were exercising rights under EU law pre-exit and therefore should benefit from any transitional arrangements in place to enable those living in the UK before a certain date to continue without being subject to immigration control.
  • Also, if the UK implements a cut off for when transitional arrangements will apply this will help show which group they are in. The Government has talked about introducing a cut off for possible transitional arrangements.

Optional

  • It is possible for an EEA national to acquire British citizenship through residence. After they have held permanent resident status in the UK for a period of 12 months, they may apply to become a British citizen. The process is called ‘naturalisation’ and requires applicants to meet residency requirements. Taking British citizenship does not mean the place of domicile is changed. If the EEA national wants to acquire British citizenship it is important when making their permanent residence application this is back dated if possible to a period that ends at least a year ago so they are deemed to have held permanent residence for 12 months.
  • It may also be possible for British nationals to acquire nationality in their EEA country of residence. Nationality law does differ from country to country but in most EEA countries it is usually possible to acquire citizenship after 5 or 6 years residency
  • Those British nationals with ancestry of another EEA country might also able to acquire citizenship e.g. through a grandparent who was born in Ireland.
  • Most EEA countries allow for dual nationality as does the UK. However, some countries do restrict dual nationality e.g. Norway and the Netherlands so applicants should always check first that they can acquire another nationality with their own national authorities.