With so much speculation and uncertainty around the issue of immigration, it is important to remember that there has not actually been any change to the immigration rules yet. However, the situation is understandably unsettling for both businesses and affected employees. We have considered some immediate steps that businesses can take to limit the impact of this uncertainty as well as the impact Brexit may have for non-UK workers in the longer term.
Introduction
Immigration will be a key battleground in the exit negotiations with the EU, with the EU's fundamental principle of freedom of movement set against the Leave campaign's drive to "control" immigration.
As a result of the uncertainty since the outcome of the referendum, many employers have been dealing with questions and concerns from employees about the impact the vote will have on their or their families' immigration status. This has been understandably unsettling both for the individuals affected as well as for the businesses who have relied on freedom of movement to employ EEA nationals freely in the UK and to send UK nationals to work without any restrictions across the EEA. Whilst most of the current focus is on the impact the vote may have on UK and EEA nationals, businesses will also need to consider how their ability to employ non-EEA nationals may be affected in the longer term if the immigration rules are changed.
In reality, as explained below, we are not expecting that there will be any short term changes and that current immigration permission will remain in place for some time, until negotiations have been concluded. However, given the uncertainty around this issue we would advise that employers consider taking a few simple steps now to minimise risks to the business that they may lose key employees.
What should employers do now?
- Provide reassurance to relevant employees that their current immigration permission is unaffected.
- Business planning to identify any key employees who may be affected by changes.
- Consider whether any other immigration options are available to key employees to obtain longer term permission to work in the UK (or for UK nationals to work in other EEA countries). This may include assisting with applications or encouraging employees to naturalise as British citizens.
- Carry out audits to identify any high risk areas of the workforce with large numbers of EEA nationals who may be affected by a change in the immigration rules.
Immediate impact – no changes expected
In the short term, we do not anticipate any immediate changes to the immigration rules. The reality is that the UK is still a member of the EU and is expected to be for some time. This means that:
- UK employees who are working overseas in an EEA country will be entitled to continue to live and work freely as they currently do; and
- EEA citizens will continue to have the freedom to live and work here.
What next?
At this stage, it looks likely that the current immigration rules will be changed in due course. However, we do not yet know what form any new rules will take and, in practice, any changes are likely to depend on the detail of the UK’s exit negotiations with the EU and possibly with specific member states.
Assuming that the UK serves notice to exit the EU under Article 50 of the Treaty on the European Union, this will trigger a two-year period after which the UK’s membership of the EU will cease, unless there is unanimous agreement to extend the period. While there is a possibility that we will see the UK's exit from the EU occurring in another way (for example, as a result a more informal arrangement) this is still likely to take some time to agree.
As things stand, it looks unlikely that an Article 50 notice will not be served until the autumn at the earliest. This means the current rights of EU citizens, including UK and EEA citizens, to freedom of movement may continue to apply until autumn 2018, if not longer.
The unknown – longer term speculation
EEA migrants living/working in the UK
Once the UK has officially left the EU, the principle of freedom of movement from EU member states may fall away. If this is the case, we will need to see what rules are introduced to "control" which EEA nationals will be able to live and work in the UK. However, it is likely that nationals of EEA countries would need to apply for immigration permission to live and work in the UK in a similar way to non-EU nationals. If this is the case, this is likely to result in a significant increase in applications for sponsor licences and visa applications and it remains to be seen how this will be managed in any new system.
That said, it is expected that some arrangements will be made for EEA citizens who are currently in the UK to be granted permission to remain under the UK immigration rules when the UK leaves the EU. However, at this stage, we don’t know whether any such permission would be indefinite or temporary, exactly who it may be available to and what criteria and application process will apply.
It would be sensible for EEA citizens who have been resident in the UK for the longer term to consider naturalising as British citizens. Although some countries do not allow nationals to hold multiple nationalities other may be able to retain their EEA passport once naturalised, so that they could continue to work in both the UK and the EEA.
There are a number of different criteria that need to be satisfied to be eligible for naturalisation and businesses and/or individuals may want to seek specific advice on their eligibility. However, the first step in any naturalisation application is for eligible employees to obtain a Permanent Residence certificate. This is generally available to individuals who have been exercising their treaty rights in the UK for at least five years, whether through study, work or economic self-sufficiency.
UK citizens living/working in other EEA countries
As with EEA nationals working in the UK, the ability for UK citizens to remain living and working in EEA countries and/or enter other countries in the future will depend on the exit negotiations and the approach of the EU and, possibly, each member state. We are expecting that this will be a key part of the negotiations and that it is likely that there will be a push for reciprocal arrangements to be agreed.
Non-EEA citizens living/working in the UK
The majority of non-EEA citizens working in the UK are currently permitted to live and work in the UK under the UK's 'points-based system'. Depending on the outcome of the negotiations, this points-based system may have to be reviewed. If EEA citizens eventually become subject to this, it will inevitably have a knock on consequence for non-EEA workers, with an increase in applications having to be considered against the stated drive to bring down the net migration figures.
Given the current uncertainty, we would suggest that employers consider whether any of their non-EEA nationals, particularly key employees, will be eligible to apply for more permanent forms of immigration clearance (for example, indefinite leave to remain) before any changes are made to the current immigration rules.
Non-EEA nationals may also apply for naturalisation, provided they have held indefinite leave to remain for at least 12 months before the application and meet the other application requirements.