Whilst the short term economic effects of the vote to leave the EU are glaringly obvious, there is a great deal of uncertainty in respect of the following;

  •  the future status of EEA nationals currently working for you here;
  •  the extent to which new EEA nationals will be prevented from coming to work for you in the UK; and
  • the status of British citizens who are currently living and working for you in the EEA.

This uncertainty is likely to continue for some time. However, what we do know is that EU law will continue to apply to the UK until the UK has formally left the EU, which is likely to take up to two years after the triggering of Article 50 (for more information on this, please click here.

It is expected (though is not guaranteed) that transitional arrangements will be put in place to ensure EEA nationals currently working here, and UK citizens working in the EEA, will continue to be able do so. However, those who do not have documentation to evidence their status in the UK will undoubtedly be more vulnerable at ports of entry and when living in the UK. It is, therefore, sensible for the EEA nationals employed by you and their dependents to take reasonable steps to protect their positions and formalise their status as soon as possible.

In light of the above, the following options should be considered:

1. An EEA national and their dependents who are in the UK should consider whether they are eligible to apply for an EU/EEA permanent residence card based on five years’ lawful and continuous residence in the UK. They should keep an accurate schedule of absences and preserve and maintain records of work or any other connection to the United Kingdom to assist with their application. Note that some people qualify for permanent residence despite not having completed five years’ continuous residence, broadly speaking these are retired persons and those who are permanently incapable of work (as well as their dependents).

1.1 If the EEA citizen (or their dependent) is not eligible for permanent residence yet, they may wish to apply for a registration certificate which evidences that they are exercising an extended right of residence in the UK. They should ensure that they continue to retain sufficient evidence that they are exercising Treaty rights. The EEA national (or their dependents) should timetable when they will be able to apply for permanent residence and should make this application as soon as possible.

1.2 If the EEA national (or their dependents) is eligible for permanent residence and they can provide evidence to show that the qualifying five year period ended at least one year ago, they will be able to apply for naturalisation once they have received their permanent residence card, should they wish to do so.

2. It is highly advisable to obtain specific advice before making an application for permanent residence since this may have adverse tax consequences for an applicant or lead to the loss of that person’s existing nationality. Furthermore, it is important to remember that on acquiring permanent residence in the UK, one may lose the benefit of EU free movement law for their third country national family members, which they would otherwise have under current EU law.

3. Preparing an application for permanent residence is burdensome and time consuming. On average, it takes around six months for the Home Office to make a decision on an application, though this commonly takes longer. It is likely that this time scale will increase significantly due to the influx of applications since the EU referendum results.

4. Each UK citizen (who does not have another EEA nationality) should consider whether they already have/can obtain citizenship of another EU country through ancestry, marriage or residence, in order to protect their status in another EU country in the event that you were to employ them there.

Finally, employers should audit the immigration status of their workforce in the UK and across the EEA. While the rights of EEA citizens to live and work in the UK and converse rights of UK citizens following the UK’s exit from the EU are currently unclear, an audit will enable you to identify who may be affected if and when the current immigration rules do change.


Philip Trott photo

Philip Trott

Partner and Head of Immigration

T
+44(0)20 7551 7652

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p.trott@bwbllp.com
View full information about Philip Trott

Posted on 02/08/2016 in Brexit Briefcase

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