In our recent survey of mid-market business leaders across the UK into the challenges and opportunities Brexit may
bring, immigration issues was highlighted as one of the key concerns. 74% of respondents indicated that businesses
require immigration to fill the skills gap and 60% indicated that migration restrictions will make the UK labour market
less flexible to demand. So what should business leaders be thinking of today to prepare for Brexit?
In March 2017 Article 50 was triggered starting the process whereby the UK will leave the EU. On the 26 June 2017 the Prime Minister addressed Parliament on the status of EU nationals in the UK. The policy paper has not been formally accepted by the other EU member states and the contents do not offer any immediate security or certainty to EU nationals.
In the face of uncertainty, businesses employing migrant labour will want to be prepared and proactive in informing
their employees of the action they will have to take and when. EU nationals continue to hold full Free Movement rights in the UK (and similarly British citizens in the EU until the UK ceases to be an EU member state). However it is prudent, and not too early, to start planning for the announced changes down the line.
What do the current government proposals say?
The current Government proposals state that people who have been continuously living here for
5 years will be able to apply to stay here indefinitely by getting settled status. This means that these
people will be free to live here, have access to public funds, and apply for British Citizenship.
Even if those nationals have already applied and have been granted a Permanent Residence card
under the rules in place today they will need to apply again for a new style ‘settled status’
document. The Government have stated that they intend to roll out a simplified application
process for these people in 2018 and this can be done either before our formal departure or in the
proposed grace period after our departure. EU nationals must apply for a document by the end of
the grace period or they will not be able to show that they have the right to live and work in the UK.
People who arrived in the UK before the “cut-off” date but won’t have been here for the five years
required to achieve settled status, will be able to stay until they have reached the threshold when
they can apply for the new style settled status.
People who arrived after the “cut-off” date will be able to apply for permission to remain after
the UK leaves the EU but only under the future immigration arrangements for EU citizens. These
people will have no guarantee of settled status.
To complicate matters the Government have not stated what those future arrangements will
be. Nor have they specified the “cut-off” date due to the fact that this will form part of their
negotiations. They have stated that it will be no earlier than 29 March 2017 and no later than our
formal withdrawal from the EU.
So what are the potential challenges for employers?
EU national staff may continue to feel unsettled at the uncertainty surrounding their future. The guidance issued is vague and has yet to be agreed with the other member states. This can create morale issues. Furthermore EU nationals may resign with a view to seeking work in other EU countries due to the fact that they believe there is no future for them here.
There has also been a sharp decline in the number of EU nationals coming to the UK and applying for jobs which could lead to a potential skills shortage in many sectors.
What are the current options for EU nationals?
Following the Prime Minister’s announcement, immediate options for EU nationals are now limited to:
1. Permanent Residence card This option is only necessary if the individual is eligible for immediate British Citizenship and wishes to apply prior to leaving the EU.
For those EU nationals who have resided in the UK for more than 5 years and have exercised a Treaty Right for a continuous five year period, they can at any point during their residence apply for a document which certifies that
under the EU regulations they have acquired permanent residence.
This can be done online or via paper form and documents must be sent to the UKVI. For such an application to succeed, an employee will have to provide a significant amount of evidence confirming that they have exercised a Treaty Right in the UK for a continuous period of five years, and that they have not lost that right by leaving the UK for more than two years. As such any documentation confirming the exercising of a Treaty Right must also be accompanied by detailed documentation confirming residence in the UK.
Once this is granted the UKVI will provide not only a document which confirms that the EU national has acquired a right of permanent residence but also a letter which confirms the date that they were actually deemed to have acquired permanent residence. This means that the letter can be used alongside the document in support
of any British Citizenship application (if they are deemed to have acquired permanent residence more than 12 months prior to an application for British nationality).
If an EU national does not qualify for British Citizenship, which would require them to have a Permanent Residence card, or indeed does not wish to apply for British Citizenship then there is little point in applying for it now. This is due to the fact that under proposals announced on the 26 June 2017 there will be a requirement for those people who hold Permanent Residence under the EU regulations to apply again for a new type of document under UK law which will confirm their settled status.
For many employees, gaining British Citizenship before we formally leave the EU may be the safest way of remaining in the UK. However they should first consult their own passport issuing authorities to check whether they are permitted to have dual nationality. They must also check whether any of their family members may be affected by them acquiring British Citizenship.
In most cases, under the rules currently in place, if the UKVI deem that an employee acquired a permanent right to reside in the UK more than 12 months before the date that they grant an application for Permanent Residence, they will be eligible for British Citizenship.
The granting of British Citizenship is at the discretion of the Secretary of State. The applicant must:
- not have been out of the UK for more than 450 days in the five years prior to the application or more than 90 in the year before they apply (270 days over three years if they are married to a British Citizen);
- meet a ‘good character’ requirement. Any criminal convictions must be disclosed and in some cases people will not be eligible for British Citizenship depending on the type of conviction they have;
- meet an English language requirement in the form of a test at level B1 (or a degree taught in English) as well as a Life in the UK test. The current fee for this is £1282 for adults and £973 for children. This is non-refundable in the
- event of a refusal and as such Applicants must get it right first time.
What do the proposals mean for EU nationals and employers?
The proposals set out in the Government’s paper impose various requirements on EU nationals and their family members when the UK leaves the EU. This is dependent on when they arrive, how long they have resided here and what activities they have been conducting whilst they have been here. We do know that free movement as we know it
now will end and that all EU nationals residing in the UK currently will have to apply for a form of documentation.
As an employer, your principal concern will be around what you can do now to ensure that you are Brexit ready with respect to your workforce, and ensure that those affected are supported.
At this stage we recommend you:
- identify who has responsibility for keeping personnel records. In most cases this will be your HR department or the person in charge of recruitment;
- carry out an audit of your workforce to assess which members of staff may be affected as a result of Brexit;
- communicate and support those staff members on possible options available to them before and in the run up to the UK’s formal departure from the UK;
- ensure that your right to work checks are carried out in accordance with UKVI regulations as following the departure from the UK all EU nationals that you recruit will need to have confirmation of their right to work in the UK; and
- keep yourself updated as to the proposals that will become law when the UK departs the EU and plan for free movement in its current form to end.
Tijen Ahmet Rachel Harvey
Legal Director Associate
0207 264 4434 0115 945 3719
03300 240 333