Despite the uncertainty surrounding Brexit, there are some steps employers can take now in order to retain their existing workforce in the UK.
Brexit has caused a lot of concern amongst EEA nationals and their employers as to what their position is in the UK and what will happen when the UK exits the EU especially in the event of a no deal. This is clearly an important issue for many SMEs, especially as sponsorship of overseas workers through the UK’s Points-Based System becomes increasingly expensive.
Importantly, free movement will continue to apply until the UK formally leaves the EU on the 29 March 2019 and in the event of a deal until the end of the transitional period.
The UK Government has clearly stated that it wishes to control migration from the EU, whilst still attracting those whom it considers have the most to offer the UK. The UK government commission the Migration Advisory Committee (MAC) to review the current immigration system and advise what the new immigration system could be after Brexit. The MAC recommended widening Tier 2 of the points based system and bringing EEA migration into this scheme with no low skilled visas except for seasonal agricultural workers. MAC advised lowering the skill level to open up more roles eligible for sponsorship but maintain the minimum salary levels with no regional variations and maintain the current Immigration Skills Charge. It is highly likely therefore that the UK will introduce measures to restrict free movement along the lines of MAC’s recommendations. The costs associated with using Tier 2 will be prohibitive especially for SMEs and the lack of low skilled visas will be very problematic for certain sectors such as retail and hospitality. It is likely that it will therefore be harder for employers to recruit EEA workers following Brexit.
In the event of a deal there will be a transitional period until 31 December 2020 and immigration control would only be imposed after this period ends i.e 1 January 2021. So there would continue to be free movement for EEA workers in the UK and British workers in the EEA after Brexit until the end of the transitional period. In the event of a no deal there will be no agreement with the EU and immigration control could be brought in sooner. Realistically in the event of a no deal the UK government is not ready to introduce a new immigration system for EEA workers and a transitional period on the UK’s side is still likely in terms of immigration control but it is not clear if this would be in place until 31 December 2020 in the event of a no deal. Also the EU may not agree to a transitional period on its side in the event of a no deal and could impose immigration control on British nationals coming to the EEA for work after Brexit.
Employees should apply for permanent residence if they have lived and worked lawfully in the UK for a continuous period of 5 years (it may also be possible to apply if they have lived in the UK for 5 years but not worked for the full period).
Permanent residence is confirmation that the EEA national has indefinite leave to remain in the UK and they are a permanent resident of the UK. It would be very difficult for the UK to go back on this status so this means when the UK exits the EU the EEA national will be a permanent resident of the UK recognised under UK law. They will therefore not be subject to any immigration control on their right to reside and work in the UK.
British citizens who are living and working in another EEA member state should also be able to qualify for permanent residence in the same way an EEA national would qualify in the UK. The process will vary slightly from country to country but the principles are the same.
Some EU countries such as Germany, do not allow dual nationality with a country outside the EU. If this is the case for those who would like to apply for British citizenship their application would need to be made before Brexit and this should be urgently looked into as applicants must have proof of their permanent residence status (see below)
- Employers should consider their recruitment needs and whether this needs to be brought forward and staff relocated to the UK or out of the UK to Europe either before Brexit or before the end of the transitional period
For employees who have not worked in the UK for 5 years, it is advisable for EEA national employees to apply for a document called an EEA Registration Certificate. It confirms their status under EU law and that they have a right to reside and work without immigration control. When the UK exits the EU it makes it easier to show that they were exercising rights under EU law pre-exit and therefore would benefit from any transitional arrangements in place to enable those living in the UK before a certain date to continue without being subject to immigration control.
Also, if the UK implements a cut off for when transitional arrangements will end which might happen in a no deal scenario this will help show which group they are in.
- They can also apply under the new EU Settlement Scheme which is being rolled out by the UK government for EEA nationals living in the UK prior to Brexit (and assuming there is a transitional period those EEA nationals coming to the UK during this period can also register under the scheme). EEA nationals should keep records of their residence and work (or other economic activity) to make registering under the scheme easier. The scheme is currently being tested as a pilot and should be fully rolled out by early next year.
It is possible for an EEA national to acquire British citizenship through residence. After they have held permanent resident status in the UK for a period of 12 months, they may apply to become a British citizen. The process is called ‘naturalisation’ and requires applicants to meet residency requirements. Taking British citizenship does not mean the place of domicile is changed. If the EEA national wants to acquire British citizenship it is important when making their permanent residence application this is back dated if possible to a period that ends at least a year ago so they are deemed to have held permanent residence for 12 months.
It may also be possible for British nationals to acquire nationality in their EEA country of residence. Nationality law does differ from country to country but in most EEA countries it is usually possible to acquire citizenship after 5 or 6 years residency
Those British nationals with ancestry of another EEA country might also able to acquire citizenship e.g. through a grandparent who was born in Ireland.
- Most EEA countries allow for dual nationality as does the UK. However, some countries do restrict dual nationality e.g. Norway and the Netherlands so applicants should always check first that they can acquire another nationality with their own national authorities.