How EU workers can strengthen their immigration position pre-Brexit


Taking simple precautions now could help protect organisations’ workforces

Many EU workers in the UK, and their employers, are understandably concerned about their current status and the impact of Brexit. The government has recently issued advice on this. When the UK serves notice to exit the EU under Article 50 of the Treaty on the European Union, this will trigger a two-year period after which the UK’s membership of the EU will cease, unless there is unanimous agreement to extend the period. Employers should make use of this time to ensure they are prepared and have done everything they can to protect their businesses.

There are unlikely to be any changes to the immigration rules in the short term, and until the UK actually leaves:

  • EU citizens (plus those from Iceland, Liechtenstein, Norway – the EEA countries – and Switzerland) will continue to have the freedom to live and work here
  • Workers from outside the EU will continue to require visas, typically under the UK’s five-tiered points based system.

In the longer term, if the EU’s freedom of movement principle falls away post-Brexit, new immigration arrangements will be needed for EU workers wishing to work here. It is likely that the points-based system will be expanded to cover both EU and non-EU nationals, which will mean that skilled EU workers will need to be sponsored by a UK business under Tier 2. The situation regarding lower-skilled workers is more uncertain.

Although the government wants to control immigration, the UK currently relies on EU workers for many lower-skilled and lower-paid jobs, particularly in the hospitality, retail, agriculture, and food and drink manufacturing industries. While Tier 3 of the points-based system does technically cover low-skilled roles for non-EU workers, it has never operated as these roles have been filled by EU workers. In the event that all non-UK citizens needed immigration clearance to work here, the obvious option would be to open Tier 3 to both EU and non-EU workers, possibly with a cap on numbers.

While the current uncertainty continues, there are steps that both EU employees working here and their employers can take.

EU employees could:

  • Start collating documentation now (such as bank statements, tenancy agreements, payslips and so on) as any application for immigration permission will require supporting evidence
  • Apply for a registration certificate, confirming that the holder is an EU national exercising his or her right to freedom of movement in the UK (this may be helpful evidence for proving UK residency)
  • Apply for a permanent residence card, confirming the EU worker has unrestricted rights to live and work here (permanent residence is automatic after five years for EU workers but there is likely to be a flood of applications for the card and processing times could be lengthy)
  • Apply for British citizenship if one year has elapsed since they obtained permanent residence status (subject to certain eligibility requirements) and have a permanent residence card (but employees should check their home country’s rules before applying for British citizenship as some countries don’t recognise dual nationality).

Employers should:

  • Audit their workforce to establish the degree to which they are reliant on EU workers, both for lower- and higher-skilled roles
  • Provide reassurance, guidance and support to EU employees (for example, pointing them to useful websites, providing a Q&A sheet, or paying external advisors to provide assistance for key employees)
  • Draw up strategies for future recruitment and workforce planning, and consider whether there are changes that can be made to the business model in the event of a shortage of workers in a particular area (this might include workplace relocation, apprenticeship schemes to grow local talent, retention and incentive schemes for employees, and outsourcing).

Huw Cooke is a senior associate and Megan Summers a solicitor in the employment team at Burges Salmon LLP


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