On 24 June 2016, the right to live in the United Kingdom for over 3 million people of its people was suddenly cast into doubt. There are estimated to be over 3 million citizens of other EEA countries living in the UK. The total number may be higher if their family members (spouses, parents, others) from outside the EU is taken into account. Many, probably the vast majority, do not have residence documents because under EU law they do not need them.
Following the outcome of the referendum we were not only contacted by concerned EU nationals but UK business owners who were worried about what Brexit would mean for their existing EU members of staff who provide a valuable contribution to their business.
The common question that I was being asked was not how can I protect my business? But how can help my staff and make sure that they understand their position and status in the UK because they are very confused and worried.
The first point to make clear is that the referendum on 23 June 2016 has no immediate legal effect and does not change anybody’s legal status.
For the UK to leave the European Union, the British Government will need to invoke or trigger Article 50 of the Treaty on European Union. This is the legal means by which a Member State may voluntarily leave the European Union. It states that unless the departing country and the rest of the EU can agree something different, the departing country will cease to be a member 2 years after Article 50 is invoked. The British Government has not yet invoked Article 50. We do not know when that will occur. Once Article 50 is triggered, free movement laws will cease to have effect 2 years after that date. In the meantime, all laws of the European Union will continue to operate as before. After the end of the two year period, though, free movement laws will cease to have effect and any EU citizens and their families in the UK will become unlawfully resident unless some specific provision is made for them.
We do not know what sort of settlement between the UK and EU will emerge. Something will be negotiated but we do not know what or to whom.
Despite the hesitance of the Government to make any commitment on the future of EU nationals, it still seems highly likely that transitional arrangements will be made and those most likely to benefit from any such arrangement are:
1. EU nationals and family members who have already acquired permanent residence and
2. EU nationals who have an EU right of residence but have not yet acquired permanent residence, and their family members.
Registration Certificate or Document confirming Permanent Residence?
Anyone employee who thinks they qualify for permanent residence would be well advised to make an application for a permanent residence. This is partly to get ready for any transitional arrangements but is also to give people who do not qualify now a chance to make sure they do qualify. To put it another way, it will be at least two years before EU free movement law ceases to apply and that may be enough time for some people to ensure they do qualify for permanent residence, or at least are on the road to doing so.
In short, any EU national in the UK will need to evidence five continuous years of a qualifying activity. The five year period could be any five year period, not just the last five years. You can also “mix and match” your qualifying activities, so you can combine say 2 years of employment with 3 years of being a student.
For those in continuous employment over the five year qualifying period the application process and supporting documents should be fairly straightforward.
In some instance EU staff may not only have acquired permanent rights of residence but they potentially may be eligible to naturalise as British Citizens.
If an employee falls into the category of those who do not at present qualify for permanent residence at this stage then then it would be advisable for that EU nationals and his family members apply for Registration Certificates or cards as formal evidence of their current status in the UK with one eye on the future.
At this stage as an employer it is important for you to understand the position as it stand today and provide the support, assistance and information that your employees need particularly, those who are still uncertain about what they should do to best protect their position.