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The one thing that the media and politicians from all parties seems to be able to agree on following the vote by 52% of voters to leave the EU is that nothing is set in stone. The future status of the EEA citizens that are currently in the UK is one of the big unanswered questions which has been much discussed but with no decisions made to date. Theresa May, newly minted PM, earlier this month refused to commit to guarantees for EU nationals currently living and working in the UK until the status of British expats in other European countries has been negotiated.

This puts the status of the estimated 3 million EU citizens in the UK in a state of flux. Nothing has changed for them in the short term, at least in terms of their right to remain, in that those who are working or studying in the UK are exercising so called ‘treaty-rights’, meaning that they can live and work in the UK without restriction. They require no visas, work permits, or other documentation to be able to do so. This is in contrast to workers from non-EU countries, who require the relevant permits or visas to be eligible to live and work in the UK. However, their status now looks likely to become the subject of negotiation between the UK government and the EU, and while it seems extremely unlikely that EU citizens currently working in the UK would be deported or would lose their rights to remain en masse, there is a possibility that changes to their status will be made.

The UK government has failed its own annual immigration target of bringing down net migration to the UK to under 100,000 per annum, which pro-Brexit campaigners argued is largely due to those coming from within the EU. Given that immigration seems to be a key concern, especially south of the border, it is likely that some sort of control will be brought in regarding migrants from EU countries coming to the UK. Whether this will be similar to the points based immigration system for non-EU nationals that is currently in place remains to be seen.

Practical Issues

For employers worried about the EU nationals in their workforce, and for individuals who are concerned about their future in the UK, there are some practical steps that can be taken to protect EU employee and their family members’ rights.

Firstly, EEA citizens who are currently working or looking for work in the UK, studying, or self-sufficient, can register as a ‘qualified person’, as can their immediate family. While there is no requirement to do so, the registration certificate can be used as confirmation of having the right of residence. It costs £65 and requires the completion of a form, along with sending in biometric data and supporting documents.

Secondly and more significantly, for those EU citizens who have been in the UK for 5 years or longer as a qualified person, applying for permanent residency will be the best way to protect their rights. If the application is approved, the individual obtains the continuing right to reside permanently in the UK. Eligible family members can also apply. Again, this costs £65, and requires supporting documents and biometric information.

Finally, individuals who have obtained permanent residency may think about applying for British nationality. In March, the Independent reported that the publishers of a textbook to help those taking the ‘Life in the UK’ test, which is a prerequisite for citizenship, had seen their sales quadruple since the announcement of the referendum date, and had had to order an emergency reprint.

It is important to remember, however, that the requirements to become a British national are onerous: it requires passing the ‘Life in the UK’ test as well as an English language test for certain individuals, and the payment of a fee of £1,236. Further, EU citizens will want to check with their embassies whether they will be required to renounce their other nationality. For example, while Germany currently allows its citizens to hold dual citizenship with other EU countries, once the UK leaves the EU the position is unclear. Individuals will therefore want to proceed with caution, and if in doubt, wait until some certainty is reached.

The message to take away both as an individual and as an employer is not to panic. While there is a lot of uncertainty around the future of free movement, the status of EEA nationals is safe for at least the two years of Article 50 negotiations, and it is unlikely that those already in the UK will be asked to leave. The bigger question is likely to be how employers will be able to employ EEA nationals post-Brexit. Various EU politicians have already stated that they cannot envisage the UK retaining access to the free market without also making concessions on free movement. This issue will be something to keep an eye on while the negotiations progress. In the meantime, if you have any specific concerns about your workforce, please get in touch with a member of our Employment team.

Annika Neukirch

Chambers UK 2018

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