The result of the General Election in June this year and the current position of Britain's EU exit negotiations seems to have reduced the probability of a hard-Brexit, although what that will mean remains to be seen. UK/EU immigration policy has taken centre stage as both sides are keen to provide clarity regarding this key area. It is unlikely that European nationals entering the UK after it formally leaves the EU will continue to benefit from the freedom of movement rights which are currently in place, but the kind of immigration regime that will replace the current system remains unclear.
Workers already in the UK
David Davis has previously stated that the UK plans to make a "very generous" offer to the 3.6 million EU citizens currently living in the UK. What will precisely constitute a "very generous" offer is unclear at present, as negotiations continue with the EU, but it is likely that any EEA national currently exercising freedom of movement rights in the UK will be permitted to continue on a course to permanent residency.
We recommend that UK businesses encourage any employees whose legal right to work in the UK is based on European Treaty rights to obtain evidence from the Home Office of their legal right to live and work in the UK. While there is currently no legal requirement for European nationals to obtain such documents, it is highly likely that those who have this documentation will be in a more favourable position than those who do not, should the immigration rules for European nationals significantly change. Indeed, the Government has indicated that documented EEA workers will benefit from a streamlined process once the new immigration system for EEA workers comes into force.
Any worker who has not yet been exercising Treaty rights in the UK for more than five years may apply to the Home Office for a Registration Certificate to evidence their legal right to work in the UK.
European nationals who have been exercising Treaty rights in the UK for more than five years may be deemed permanently resident in the UK. As such, they may apply for a Permanent Residence card to evidence that they are permanently residence in the UK and free from immigration restrictions. This status is also a mandatory prerequisite for applying to naturalise as a British citizen: an application which can be made after holding Permanent Residence status for a period of 12 months.
Post-Brexit – new European workers in the UK
The post-Brexit immigration framework for European workers is far from clear.
The Government has stated that it will be setting out its initial proposals for a new immigration system which "takes back control of the UK's borders" later in the autumn. However, the recently leaked document setting out the Government's proposed post-Brexit plans for immigration suggests that high-skilled EEA workers will be able to obtain visas for up to five years to work in the UK, and lower-skilled EEA workers will be able to obtain visas to work for up to two years in the UK.
For high-skilled workers, this would suggest that the Government appears to favour a regime similar to that of the current work sponsorship scheme for non-European workers in the UK. This system is known as "Tier 2" and requires the company to obtain a licence from the Home Office to sponsor workers for employment in the UK and fits in with Government messaging that only those EEA nationals with a job should be able to enter and remain the UK for work purposes following Brexit (the so-called "registration and documentation" approach). As part of this process, the Home Office conducts checks on the company applying for the licence and assesses the company's ability to support the sponsored worker and comply with Home Office requirements, including the conduct of legal right to work checks and tracking immigration permission to work in the UK. Although European workers may not fall under Tier 2, companies which are already registered with the Home Office under Tier 2 at the time the UK leaves the EU are very likely to be granted permission to sponsor new workers from Europe faster and more easily than those not already registered with the Home Office.
We recommend that businesses prepare for Brexit through registration for a Tier 2 licence in advance of Britain leaving the EU, or, in any event, review their internal HR processes to ensure the company will be able to meet Home Office requirements easily should it be necessary to apply for a licence to sponsor European workers in the UK.