BREXIT: Practical steps to protect your workforce from future immigration law changes

Out-Law Analysis | 27 Jul 2016 | 12:23 pm | 3 min. read

FOCUS: Depending on the outcome of the 'Brexit' negotiations, what you do now may be a deciding factor in whether your EU employees can remain in the UK for the long term.

This is part of Out-Law's series of news and insights from Pinsent Masons experts on the impact of the UK's EU referendum. Watch our video on the issues facing businesses and sign up to receive our 'What next?' checklist.

Although curbing European immigration to the UK was a central component of the campaign for the UK to leave the EU, it remains unclear what immigration rules will apply in the post-Brexit UK. We recommend that steps are taken now to document and secure the immigration status of EEA nationals and their families as far as possible - as well as that of UK nationals currently living and working in other EEA countries.

In this period of post-Brexit uncertainty, we anticipate that many people will be trying to take steps to resolve their immigration status. Bear in mind that this may result in procedural delays.

There are practical steps that employers of individuals whose right to live and work in the UK may be affected by the outcome of the Brexit vote can take now:

Audit your workforce. Take stock of the potential impact a loss or restriction of free movement could have on your workforce. How many of your workers depend on EEA status to work in the UK? How many of your workers are UK nationals working in other EEA countries?

Communicate with affected workers. Review with them what their current status is based on, and what steps might be available to them to secure their status in the UK as far as possible. Consider whether or not your organisation can support them in an application for residency or citizenship.

Consider your longer term recruitment needs. Is your business dependent on the recruitment of EEA nationals, whether for skilled or for low-skilled work? If that source of workers is no longer available to you, do you have a contingency plan to fill those roles?

Some employers who are unable to source the skills they need in the UK have historically looked to the EU market for recruitment. If that becomes more challenging, they may need to turn to non-EEA nationals. If so, consideration should be given to applying for a sponsorship licence, ensuring you are ready and able to recruit those individuals under the Points Based System (PBS). Indeed, depending on future government policy, EEA nationals may also fall under the PBS post-Brexit.

For EEA nationals who are not yet in the UK

While the UK remains a member of the EU, EEA nationals and their non-EEA family members can continue to exercise their treaty rights and enter the UK to live and work.

It is widely predicted that the number of EEA nationals seeking to enter the UK pre-Brexit will increase. That is likely to lead to a surge in applications to the Home Office, and consequent delays in having those applications processed. We recommend that any individuals in this category take action now.

For EEA nationals already living and working in the UK

While the UK remains a member of the EU, EEA nationals and their non-EEA family members already in the UK can continue to exercise their treaty rights by living and working in the UK.

It is unlikely that the permission of individuals in this category to be in the UK will be revoked in the near future. However, this is a politically charged issue and the outlook may change dependent on government policy. Statements by the new prime minister appear to indicate that the government will be keen to ensure that EEA nationals already in the UK are able to remain, and legislation to that effect has been put forward by the Liberal Democrats, but it will be some time before the position is clarified.

Individuals in this category can take steps now to try to secure their residency in the UK as far as possible:

  • if they have been in the UK for less than five years, by seeking a registration certificate confirming their right to be in the UK;
  • if they have been in the UK for more than five years, by applying for a permanent residence card;
  • if they have been in the UK for more than six years, by applying for British citizenship.

Anyone now seeking British citizenship must first hold a permanent residence card, and related delays should be factored in. Further, employees considering British citizenship should first explore any impact that will have on their rights in their home country and tax status, as well as taking into account that acquiring British citizenship could result in the loss of free movement rights for their non-EEA national family members in the UK.

Individuals in this category should map out their eligibility for each level of documentation and plan in advance.

For British citizens living and working in other member states

In future, the rights of British nationals to stay in particular EEA member states will depend on the terms negotiated with the EU. These individuals should explore their options to secure their status in the country in which they are based – perhaps by seeking a registration certificate, permanent residence or citizenship.

Individuals in this category may also wish to explore whether they have any right to seek citizenship of another EU country through ancestry or marriage which could safeguard their position elsewhere in the EU – for example, a right to an Irish passport.

Euan Smith and Joanne Hennessy are corporate immigration law experts at Pinsent Masons, the law firm behind