Unfortunately, it is not possible to accurately predict how UK immigration law will develop in light of the referendum vote to leave the European Union (EU). This is because so much depends on how, in light of the “leave vote”, UK immigration policy develops and negotiations with the EU progress. However, we have made tentative predictions below, based on what is known at the moment:
- No change in the rights of European Economic Area (EEA) or Swiss nationals (or, for the moment, anyone else) to live and work in the UK.
- Unlikely to be any change in the freedom of movement/labour principle that gives rights to EEA and Swiss nationals to live and work in the UK.
- May be made easier for non-EEA/Swiss nationals (from countries such as Australia, Canada, China, India, Japan and the USA) to work in the UK, especially if a “skills gap” develops in the UK.
- Assuming the Government is not forced to back down on freedom of movement, there will be an end to the freedom of movement/labour principle as it currently applies to the UK. However, it is possible that the UK will be forced to accept a fairly similar arrangement, as part of any new deal with the EU. This could for instance involve the UK joining the European Free Trade Association (EFTA) and agreeing to freedom of movement with the EU, subject to an overall annual cap, in exchange for freedom of trade with the EU.
- Otherwise it may be that, over the course of some years, we will see “flexible” bilateral immigration treaties entered into between the UK and EU and EFTA member states. For instance, following the effective date of Brexit, the UK may agree with countries such as Germany reciprocal arrangements that make it easier for citizens of each country to work in the other. The UK has for many years had such special immigration arrangements with countries such as Australia, Canada, New Zealand and the USA.
- It may well also be made easier for non-EU/EFTA nationals (e.g. Australian, Canadian, Chinese, Indian, Japanese and USA nationals) to work in the UK, to avoid a “skills gap” developing. However, in this event, the UK Government may decide only to extend more favourable treatment to “the best and brightest”, or to those who can fill so called “shortage occupation” jobs in the UK.
- Where no flexible bilateral treaty has been agreed (or been agreed yet) between the UK and the state in question, it is likely that the UK’s current points-based sponsorship system will apply to EEA and Swiss nationals.
Businesses that rely on employing EEA and/or Swiss nationals in the UK may feel reassured that:
- The UK Government is likely to give advance warning of changes in UK immigration law that negatively impact on businesses, giving them time to prepare; and
It also seems likely that, even before the new UK immigration law framework is finalised, its shape will start to become apparent as negotiations to leave the EU advance during the expected minimum two year “lock in” period, thereby giving employers added time to adapt to any changes and put in place appropriate measures.
The Financial Times has reported that approximately 3 million EU nationals were living in the UK in June 2016 and that 71% of them have been here for 5 years or more. This means that the majority of these EU nationals are likely to be entitled to permanent residency rights in the UK and ultimately to UK citizenship. If they obtain either status they will be unaffected by the freedom of movement/labour principle.
What can businesses do now to prepare for Brexit?
Whilst it is difficult to take “targeted” steps to prepare at the moment, given that it is not known how Government policy and the exit negotiations with the EU will develop, there are steps that employers can take now, which may place them in a better position to adapt. These steps include:
- Businesses that do not currently hold a sponsor licence: Businesses that employ EEA or Swiss nationals in the UK (or wish to in the future) have the option of applying for a sponsor licence now, to be “held in reserve” for future use. The main advantage of doing so is that they will have more time to become used to managing their sponsor licence (and the challenges, compliance burden and complexities that entails), which should put them at an advantage compared to businesses that obtain a sponsor licence at the last minute. Further, there could be delays in obtaining a sponsor licence in the future, should there be a “rush” of employers applying for a sponsor licence closer to the effective date of Brexit.
- Businesses already holding a sponsor licence: Businesses that already hold a sponsor licence may wish to review their sponsorship systems and procedures to ensure that they are as robust as possible, meet all UK Visas and Immigration requirements and that sponsorship duties are being complied with (for instance, by having a compliance audit to “stress test” their systems and procedures). They may also wish to have contingency plans in place so that, if the sponsorship system is eventually extended to EEA and Swiss nationals from the effective date of Brexit, they are in a position to very quickly “scale up” their systems, procedures and resources in order to be able to cope with sponsoring many more employees, depending on the make-up of their workforce.
- All businesses that currently hire EEA or Swiss nationals: Whilst there is currently no change in the rights of EEA and Swiss nationals to live and work in the UK and there is unlikely to be any change to the freedom of movement/labour principle between now and the effective date of Brexit, it is not impossible that extraordinary developments will change the position. For instance, it is not clear how the government will treat the so called “acquired rights” of EEA and Swiss nationals and their families who are already living and working in the UK.
Businesses that already employ EEA or Swiss nationals in the UK may therefore wish to suggest:
- to those employees who have lawfully resided in the UK for 5 years that they apply for what UK Visas and Immigration calls a “document certifying permanent residence” without delay, if they are eligible to do so; and
- to those employees who have not lawfully resided in the UK for 5 years that they check if they are eligible to apply for a permanent residence certificate more quickly, and if not suggest that they apply for one as soon as they are eligible to do so.
Having such a certificate is equivalent to obtaining “indefinite leave to remain”, in that it evidences that the holder has permanent residency rights in the UK and would not therefore be affected by any end to the freedom of movement/labour principle vis-à-vis the UK.
The position of dependant family members of EEA and Swiss national employees who rely on the immigration status of the national in question to reside in the UK should also be taken into account when assessing eligibility and advising on options, including whether such family members are eligible to apply for so called permanent residence cards.
If you have any immigration queries please visit our individual immigration page or contact a member of our team.