How many workers currently take advantage of the free movement provisions into and out of Britain?
According to the April–June 2014 Labour Force Survey, there are 1.73 million EU nationals living in the United Kingdom, 79 percent of whom are actively employed. Recent reports from British consular authorities estimate that 2.2 million Britons live in the other 26 EU countries, excluding Croatia, which joined in 2013.
Of the reported 624,000 people who immigrated to the United Kingdom in the year prior to September 2014, about 251,000 people moved to Britain under the EU free movement rules. The remainder entered pursuant to the governing visa restrictions of the UK’s points-based immigration system.
If British citizens vote to exit the European Union (“Brexit”) pursuant to the referendum on June 23, 2016, will British citizens immediately lose the right to move and work across EU borders freely?
The short answer is no; the vote would have no impact until the British government fully negotiates its exit from the European Union. Accordingly, while the British government may take other actions regarding immigration control independent of Brexit, the decision to leave the European Union would not of itself restrict workers’ freedom of movement immediately.
What free movement benefits would be at risk if a Brexit leave vote prevails?
Currently, British citizens can move easily to another EU country, with citizens of EU countries equally free to move to the United Kingdom. Both of these free movement benefits would be subject to the negotiation of the terms of withdrawal and, potentially, new agreements between Britain and individual member states. The current free movement benefits:
- EU workers hired to work in Britain. Under Article 45 of the Treaty on the Functioning of the European Union (“EU Treaty”), passport holders from any EU member state currently may work for an employer in another member state—including the United Kingdom—freely. Employers operating within the European Union accordingly benefit from the ability to staff their operations with “visa free” nationals from any EU member state—they do not have to undertake immigration processes to apply for and obtain work permits. While those EU workers must still comply with validation of their legal right to work, such as the UK’s “day one validation” requirements, they face no immigration work permit filing or registration requirement.
- British citizens hired to work in the European Union. Conversely, British citizens seeking to work in other EU states currently are authorized to undertake employment in other EU and European Economic Area (“EEA”) member states without first having to file for a work permit.
What terms would govern the movement of such workers if the United Kingdom votes for Brexit?
As the leave campaign is particularly concerned about visa-free travel into Britain, EU nationals seeking to live and work in the United Kingdom ultimately could face new rules incorporating a traditional visa/entry clearance as well as formal requests for work authorization. The leave campaign has indicated its preference for a system akin to the Tier 2 system within the UK’s current points-based scheme. The specific terms of any immigration requirements will be subject to the negotiated terms for withdrawal and any domestic arrangements with other EU member states.
If the United Kingdom votes for Brexit, how long will the current benefits remain in place?
At a minimum, the current free movement terms are expected to remain in place for two years following the Brexit vote. The Prime Minister has indicated that the British government would invoke its right, under Article 50 of the EU Treaty, to notify the European Union of its withdrawal, which would then require the European Union to attempt negotiation of a “withdrawal agreement.” The EU Treaty terms cease to apply to a member state from the date the withdrawal agreement takes effect, or, failing that, two years after the notification (or longer if the European Council makes a unanimous decision, in agreement with the member state, to extend this period).
Alternatively, the Prime Minister may elect not to invoke Article 50 at all. Instead, he or his successor (should a leave vote mandate his resignation) may elect to work with the European Union on a set of further concessions. The proponents of Brexit would likely leverage the leave vote to secure further significant concessions on free movement and sovereignty. In this scenario, the negotiation of concessions could precede a second referendum and defer any outcome of the exit —including the implications for legal right to work—for many additional months.
What should employers advise their workers if the United Kingdom votes for Brexit?
Workers should not panic, as the terms of Brexit will be subject to the withdrawal negotiation, which as noted will delay any changes to the EU freedom of movement benefits for at least two years, or to the development of negotiated concessions and a potential second referendum. But those workers who are legacy beneficiaries of the EU terms should consider whether to exercise the right to obtain permanent residency to protect against any future change. Specifically, permanent residency should be considered for two groups, as noted below:
- EU nationals who have exercised treaty rights (by working, studying or being self-sufficient) in the United Kingdom for a period of at least five years are entitled to permanent residence in the United Kingdom under EU law.
- British nationals who have exercised treaty rights in other parts of the European Union by working for at least five years similarly may apply for permanent residency in that other EU state. That residency benefit would give them rights not only in the EU state where they apply for residency but throughout the remaining EU treaty region.