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UK HR e-briefing - Brexit: some frequently asked questions about workers and immigration

  • United Kingdom
  • Brexit
  • Competition, EU and Trade
  • Employment law - HR E-Brief
  • Global mobility and immigration - HR e-briefs

15-02-2017

Brexit and the legal implications for businesses[28 November 2017]

Following the Supreme Court judgment on 24 January 2017, the Government introduced legislation in Parliament to give the Government the legal power to trigger Article 50 and begin the formal process of withdrawing the UK from the EU. This was invoked on 29th March this year.

There are inevitably a multitude of questions and concerns on the part of employers regarding how the potential loss of free movement of workers between the UK and EEA countries (EEA: the European Economic Area which includes EU countries plus Norway, Liechtenstein and Iceland) might affect business or give rise to wider immigration implications in due course. Even so, it is important to stress that, with respect to EU principles of free movement, there will be no change until the UK actually ceases its EU membership. Triggering the exit process under the EU mechanism of Article 50 has commenced the anticipated two year period of negotiation over what might replace current EEA immigration arrangements. The European Chief Negotiator for Brexit. Michel Barnier, has advised that it will take at least six months to ratify any agreement, so it is likely that negotiations will conclude by the end of September 2018.

On 17 January 2017, Theresa May announced that the Government is planning to control immigration whilst stating that it will seek to guarantee the rights of EU citizens already living in Britain and the rights of British citizens living in other member states. Uncertainty still, however, remains as to what such a deal will provide for non-EEA Nationals currently living and working in the UK.

There have been two clear indications of the Government’s current thinking regarding immigration since the Article 50 notification. The Government published a document, “Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU”, on 26th June which outlined what they wish the position to be on the UK leaving the EU. The European Commission’s position paper ‘Essential Principles on Citizens’ Rights’ was published shortly before this and there are important differences between the two, notably on the legal mechanism to enforce immigration rights after the date of departure. A document was leaked to The Guardian newspaper on 6th September which appears to be an early draft of a policy statement explaining how the immigration system will change as a consequence of Brexit, intended for discussion and consideration by stakeholders. Three phases of managing the transition of immigration status are suggested, with a period of at least two years from April 2019 onwards in which arrangements to implement the new process and ensure all EEA citizens living in the UK may apply for the right to permanent settlement. The new immigration system to apply after that phase has not yet been determined but is being assessed. It is likely to involve limiting the permitted time and activities of EEA citizens seeking to live and work in the UK from a specific date.

Whilst the Brexit process fully emerges and for the foreseeable future, employers can assume that citizens of EEA countries can continue to work freely in the UK, just as before the EU Referendum. In other words, those working in the UK already may continue to do so and those wishing to come to the UK to work remain able to do so, without restriction.

In the questions and answers which follow, we have sought to address some of the more immediate issues employers may have and to share our thoughts, taking into account the inevitable political and legal uncertainties at present. There are some issues which employers should start to think about now and to plan ahead. Where we would advocate taking steps in the short term, therefore, these are highlighted below.

1. Can we still employ a citizen of an EEA country?

Yes. Nothing changes in respect of immigration law, or is likely to, until the UK leaves the EU. At the moment, citizens of the EEA can work freely in the UK, as before the EU Referendum. You should continue to make the necessary right to work check on these employees before they start employment.

2. Should we change our recruitment policy now in respect of EEA citizens?

Undoubtedly, there is a question mark over how the rights of EEA nationals will be affected in the future. However, changes to the principle of free movement, are some way off and arguably still too uncertain to cause radical alterations to recruitment strategies as yet. Furthermore, whilst the status quo prevails, employers taking steps to reduce access to employment for EEA nationals run the risk of unlawful discrimination.

In the interim, check that all offer letters and contracts of employment contain “right to work” clauses to support a contractual basis for change, if this is needed in the future.

3. What should employers be thinking about now in relation to immigration issues?

In the upcoming months and in the absence as yet of any real certainly, below are some steps employers may wish to consider as precautionary measures, or simply to reassure their staff:

  • Audit: Ensure you know who your EEA national employees are, together with any British workers based in other EEA countries. Identify all new EEA recruits for ease of communication in the future.
  • Assess: Is there an area of the business that is affected disproportionately? Is this a business critical role or a hard to recruit area? How will a worker’s immigration status be affected (for example, have some already got permanent residency etc?). What if EEA nationals choose to leave before Brexit –will you be prepared?
  • Communicate: Have you communicated any messages of reassurance to your work force or let them know where they can obtain further information and how to voice concerns? Consider gathering common questions and circulating answers.
  • Support: For critical employees from the EEA particularly, should you be proactive in explaining or supporting applications for permanent UK residence or exploring other options? Consider offering guidance, or access to external advice, on residency/citizenship and workers’ options.
  • Review: Check engagement documents and contracts of employment for adequate “right to work” clauses (as above).

4. Would short-term seasonal and low-skilled workers from EEA countries still be employable in the UK after Brexit?

There is not enough information about the terms of the UK’s exit from the EU to assess the potential impact upon this group of workers. There is commentary in the “leaked document” referred to above about the position of lower skilled workers and that provision will need to be made for resource to the British economy at all levels. . The possible imposition of current UK immigration rules (as applied to non-EEA nationals) would, however, be likely to restrict such recruitment, possibly with the introduction of a time limit on activity such as agricultural and food production work.

The UK’s need for low skilled labour would indicate that Tier 3 of the UK’s Points Based System may be opened or a new structure designed, although reports from UK Visas and Immigration indicate the Home Secretary at present would prefer a form of work permit system in which new entrants to the UK must have an offer of a “skilled job”.

If, as a business, you rely on seasonal and/or low skilled EEA labour, you may wish to start contingency planning, such as exploring whether alternative workers might exist within the UK, even if the need never arises to action it. In any event, expect government clarification and a period of notice before any changes become effective.

5. Will UK citizens still be able to work in current EEA countries when the UK leaves the EU?

Free movement applies to UK workers wanting to live and work in EEA countries, just as much as to EEA workers coming here. The right to free movement as it exists now may cease to exist when the UK leaves the EU, unless arrangements are made between the EU and UK as part of a new relationship going forwards. It is fair to assume that any arrangements will be reciprocal.

If no revised arrangements are able to be agreed, post-Brexit, movement of workers will still happen –but will be restricted according to permission being granted to work in the relevant country under local immigration law and relevant work permit or visa requirements. It may be appropriate to consider pan-EEA immigration applications such as those relating to the Schengen Agreement and the “Blue Card directive” in planning how to manage such assignments.

Eversheds Sutherland has offices across the EEA and can provide local immigration advice.

6. Will Brexit affect non EEA citizens currently in the UK or future hires?

No obvious immediate change is likely to result. It is conceivable that all immigration rules (affecting both EEA and non EEA citizens) may be reviewed if the UK does introduce controls for EEA workers. However, a restriction upon the rights of entry of EEA workers could also assist in meeting the Government’s current net migration target, which may eventually mean that current restrictions upon non EEA workers and dependant relatives might be reduced.

7. Coming to the UK now seems unattractive to EEA workers and students who may be concerned about their longer term future. Can I assure them they will be able to stay throughout the assignment or course?

The degree of uncertainty surrounding leaving the EU and whether to replace free movement, make it impossible to predict if or when change will arise. Short term courses or assignments are unlikely to be affected. Longer term, this is a harder question as, although exit negotiations may give a landscape in which we will operate, the fine detail will affect each migrant differently.

8. I have heard that EU nationals should apply for permanent residency. Will that secure their future in the UK?

At the moment EEA nationals do not need to apply for an UK visa or register to live and work in the UK. Permanent residency happens automatically for eligible EEA nationals who meet all relevant criteria. However, since 2015, applying for a permanent residence card has been a prerequisite for EEA nationals wishing to apply for British citizenship. Being a British citizen will obviously avoid the impact of Brexit in terms of ability to live and work in the UK.

As for residency in the UK, EEA nationals who have lived in the UK for five years whilst working, studying, actively seeking work or being self-sufficient may apply for permanent residence.

There is no guarantee that those who have obtained a permanent residence card (but not British citizenship) will have any preferential status at the date of Brexit. The Government’s position paper in respect of this advises that a further application for “settled status” will be required of all EEA citizens in any event after the UK leaved the EU. As the application for permanent residence is relative quick and inexpensive and also does provide a current confirmation of the right to live and work permanently in the UK , it may be seen as a worthwhile step.

Permanent residence applications typically take two months to be considered as at September 2017. It is possible to request the return of documents during the application process, without impacting upon the application itself. It is also now possible to utilise the European Passport Return Service whereby, for a small fee (typically £10), many local authorities will submit the application to UK Visas and Immigration on behalf of the applicant and return the passport or national identity card to them, enabling travel whilst the application is being processed. One requirement of using the service is that the officially prescribed on-line application forms must be used. It is not possible to use this service if a non-EEA citizen who is dependent on a qualifying person or permanent resident, or as a student or self-sufficient person reliant on other people to show income or responsible for other family members.

It is now mandatory to use the specified application forms for an application to be considered valid.

9. When can an EU national apply for British Citizenship?

After a period of 12 months from the date on which they have been exercising rights in the UK for five years, an EU national is eligible to apply for British citizenship. There are other criteria for citizenship, all of which must be met. It is not normally necessary to surrender original citizenship to obtain a second.

10. What about British nationals living in Europe – are there permanent residency and citizenship options for them?

Each EEA country has its own requirements for citizenship – in Germany the requirement is eight years’ residence, whereas in Sweden, it is five years. As one would expect, there are other conditions but, any British national currently living in Europe and wishing to make their future more secure, should explore local requirements.

11. How will seconding employees to the EEA from the UK (and vice versa) change following Brexit?

This will depend on the immigration system introduced post-Brexit. If the UK was to have similar freedom of movement provisions to those existing now (such as EEA membership), there would be little change. However, this seems unlikely based on the Government’s White Paper, As such, permission to work may be required both for those entering the UK and British citizens working in the EEA.

At the moment UK nationals (along with all EEA nationals) are attractive candidates for roles with an EEA wide remit as there is no need to worry about right to work issues in multiple jurisdictions. Depending on the outcome of the negotiation this ease may be impacted for UK nationals.

12. How will business travellers be treated when visiting the UK post Brexit?

As above, this will also be determined by the negotiation of Britain’s exit, whether free movement continues and the nature of the immigration system post Brexit. In the absence of free movement, it is possible that business travellers may require permission to enter the UK.

13. What will be the status of Irish citizens working in the UK?

The Common Travel Area arrangements between the UK and the Republic of Ireland pre-date either the UK or the Republic of Ireland joining the EU, with free movement between the countries dating back to Irish independence in 1922. Whilst this would not, in itself, prevent the re-introduction of immigration control between the countries, the UK’s Immigration Minister has advised that both the British and Irish governments wish this to continue and it has been reiterated in the position paper that Irish citizens need take no steps to confirm their rights to live and work in the UK. There has been some speculation that a reinforced border check between the UK and Ireland may be necessary as a consequence of Brexit.

14. Some have mentioned than an Australian-style points system may be introduced – what do I need to know about that?

The current non-EEA immigration system in the UK was originally styled as being Australian and points-based. In practice, it simply means that there are a series of rules which regulate who may work in the UK.

The Immigration Minister has advised in the Home Affairs Parliamentary select committee that any new system introduced may not be points–based, so it is too early to assess what the impact of a new system may be.

15. What is the impact on those citizens of EEA countries who have been resident in the UK for many years and that of children born to EEA citizens in the UK?

Many EEA citizens have lived in the UK for several years. The Minister responsible for exiting the European Union has stated that the Government believe that approximately 85% of the 3.3 million citizens of EEA countries who live in the UK have been here for more than five years and are therefore likely to qualify for permanent residence.

Citizens of EEA countries who have exercised qualifying rights in the UK acquire the right to permanent residence after five years without the need to make an application to UK Visas and Immigration. Many long-term residents take the view that making an application for conformation of these rights may well be good evidence of the right to live and work in the UK at a future date after Brexit takes effect. Whilst the terms on which EEA citizens may stay in the UK after this are to be negotiated, this may help in showing a future employer the right to work.

Most children born in the UK to parents from EEA countries are likely to have the same immigration status as their parents. Those whose parents have lived in the UK for at least five years at the time of their birth may qualify for British citizenship automatically. The rules regarding this are slightly complex and depend on the date on which a child has been born in the UK:

  • children born in the UK before 2nd October 2000 are automatically British if either of their parents was exercising a Qualified Person right at the time of their birth;
  • those born after that date but before 29th April 2006 are automatically British if one of their parents obtained formal confirmation of the right to live permanently in the UK before they were born;
  • if born later than this, it is necessary to show a parent has a right to permanent residence acquired before birth, not necessarily a document showing this.

There are detailed rules in place about children obtaining of British citizenship by application if born outside the UK or otherwise not matching a category above. It is unusual for a child to be registered as a British citizen if at least one of their parents is not currently British or applying at the same time, but there is discretion for caseworkers to allow this.

16. Are any steps being taken to make the current EEA application process more efficient?

A service has been introduced whereby it is possible to make applications for EEA Qualified Person or EEA Permanent Residence on-line, then bring the documents to a local register office , with the passport being returned to applicants on the same day. Using the on-line application process is a pre-requisite of this process. The service is widely offered throughout the UK. Appointments must be made within five days of applying on-line. A small charge only will be applied to using this service.

Applicants who require a decision quickly regarding their applications may be eligible to apply through a Premium Service Centre for a fee of £500.

17. What are employers doing to manage this business risk?

We have come across several different approaches to Brexit and free movement.

A common approach is to assess the business as a whole and consider which areas are most likely to be impacted by Brexit if free movement were to cease or to be restricted. Some employers go on to provide workshops or training for staff seeking to make such applications, or signpost providers who can do so.

18. Are there any common barriers which arise for EEA citizens seeking to obtain confirmation of their right to be in the UK?

We do come across several common barriers to employees making applications based on five years’ residence in the UK. The most frequent reasons include:

  • difficulty in finding documentation to confirm presence in the UK over this period
  • those who have been either students or self- sufficient not possessing the comprehensive sickness insurance necessary to apply
  • being deterred by the official application form for permanent residence, which is especially lengthy and intrusive
  • decision-making which appears poor, administrative mistakes and delays in processing applications

There are resolutions to these issues and we would encourage those considering making such an application to proceed.

19. Should employees apply for dual nationality?

Whether the benefits of holding British citizenship are justified will be a question for each individual applicant to consider. Things which we would suggest should be borne in mind are:

  • the rights of those with permanent residence in the UK, who have not acquired British citizenship, are likely to be protected but may be lost by residing outside the UK for two years or more
  • the UK allows multiple citizenship although many countries in the world do not, so acquiring this may possibly have an impact upon an existing citizenship
  • in some countries, acquiring multiple citizenship is limited to that of other EEA countries, so there may be an aspect relating to timing of the application to consider
  • becoming a British citizen at the cost of an existing citizenship is likely to impact an employee’s ability to work elsewhere in the EEA in future
  • this is an expensive and relatively slow process.

20. Do employees in same-sex relationships receive different treatment in applying for permanent residency or naturalisation?

No, marriages and civil partnerships are treated in the same way for immigration applications. Applications which are based on cohabitation generally require the couple to show they have lived together for two years before making the application. If applying on the basis of a “durable relationship” using the these provisions, it is likely that additional evidence of dependency and the close nature of the relationship will be needed if the couple have yet to live together for two years. In respect of each of these immigration applications, same sex and opposite sex couples are treated equally.

Marriage or civil partnership with a British citizen is specifically required in order to benefit from the provisions which could allow a British citizenship application to be made after only three years of residence. For those who are not married or in a civil partnership with a British citizen, the period of residence required is five years. Same sex and opposite sex couples are subject to the same rules.

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