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Immigration Special: Implications of Brexit for EEA and Swiss Nationals

In the early hours of Friday 24 June 2016, it was confirmed that 52% of the Great British public had voted in favour of leaving the European Union. The impact was felt immediately, with the FTSE falling and Sterling weakening to its lowest point in over 30 years. The Prime Minister resigned. European nationals living in the UK were understandably concerned, with many not knowing what this meant for their future in the UK.

EU nationals, together with those of Switzerland, Norway, Iceland and Liechtenstein (countries that are not members of the EU but are part of the single market) have of course enjoyed freedom of movement across each other’s borders without the need for work permits for many years. It is not yet known whether the UK will seek a similar arrangement to those individually named countries or not; certainly there are some strong indications that the UK will want to remain part of the single market in which case freedom of movement is likely to be a pre-requisite. However, given the attention on the issue of immigration throughout the referendum campaign, it is unlikely that UK politicians will want to keep the UK borders open in the same way.

Currently, a European national may enter the UK and can study or work freely. As long as they have been in the UK working, studying or with sufficient funds to maintain themselves without accessing public funds for a period of five years, they automatically become a permanent resident, although they must also have had comprehensive sickness insurance in place during any period of study or self-sufficiency. Permanent residence in the UK is not lost until the individual has been outside of the UK for at least two years. After the individual has been in the UK with permanent residence for one year, they become eligible to apply for British citizenship. 

Net migration (numbers in less numbers out) of EU citizens into the UK was around 185,000 in 2015. During the same period, the net figure of British citizens leaving the UK, with most presumably heading to other EU countries, was around 40,000. Leave campaigners believe that by removing the right of freedom of movement, a points-based system similar to the one in place for non-EU citizens can be implemented to reduce immigration (whether that is a good or bad thing remains a point of contention).  Non-EU net migration was close to 190,000, more than a 30% rise on 2013’s figure despite the Tories pledging to reduce net migration back in 2012. Of course the rules on non-EU migration are unlikely to be affected by the UK’s departure from the EU.

So what next for Europeans living in the UK? Well, the immediate answer is that there is no change. Until the UK officially ceases to be part of the EU, freedom of movement will continue to apply. This will remain the case until the UK government invokes Article 50 of the Lisbon Treaty and then negotiates its exit (which is likely to take two years but could be longer if the EU states agree to an extension). It is expected that the new legislation in the UK will include a transitional arrangement, with EU citizens already in the UK under the European rules likely to be permitted to remain for a certain period in order to obtain permanent residence.  

Employing European nationals will also therefore remain perfectly acceptable, and no work permits will be required for the time being. However, in due course it may become necessary for employers to sponsor their European employees or for them to have an alternative right to remain in the UK (e.g. as the spouse of a British national) in the same way as currently applies to non-EU citizens. This may of course create a significant burden on businesses reliant on workers coming from the EU, and as a result the UK government may be pressured to reduce the bureaucracy of such a system and still permit a number of unskilled workers to enter the UK where there may otherwise be labour shortages.

Our advice to European nationals currently in the UK is therefore not to panic, but to get their paperwork in order. Those who have been in the UK for less than five years may wish to apply for a residence card as evidence of their current entitlement, and this may then assist them when eventually applying for permanent residence. Those who have been here for more than five years are likely to have automatically obtained permanent residence but may wish to apply for a document certifying permanent residence as evidence of this fact. It is also a requirement of the naturalisation process to have such a document if the individual also wishes to apply for British citizenship.

 

Matthew Cranton - Employment & Immigration

This article was first published on 1 July 2016 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox! 

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.