Brexit – What Now For EU Nationals Working In The UK?

Endless debates abound as to how immigration laws may be affected by the recent Brexit result. The Home Office, Cabinet Office and Foreign and Commonwealth Office released a joint statement on 12 July 2016 confirming that they fully expect the legal status of EU nationals living in the UK, and of UK nationals in EU member states, will be properly protected. At present, however, no further details have been given.

Whilst there are no definitive answers as to what will happen now to EU nationals currently working in the UK, there are steps you can take now, as a matter of prudence, to protect your position as much as possible whilst a decision is being taken.

  • 1) Consider other passports/visas you can apply for– consider whether you have British or Irish heritage or can apply under the current points-based system which operates for non-EEA nationals.
  • 2) Document your status- the majority of EU nationals living in the UK have no documentation showing their right to reside and work in the UK. This is because it is not necessary under EU law provided the EU national is exercising their treaty rights (namely as workers, self-employed, students, or retired or self-sufficient individuals). Whilst obtaining evidence of your status in the UK is not guaranteed to protect your position, it may still be worth doing so, because EU nationals who have:
  • lived in the UK exercising their treaty rights for less than 5 years can apply for an EU Residence Card;
  • lived in the UK exercising their treaty rights for 5 years or more automatically gain permanent residence and can apply fora permanent residency card; and
  • held permanent residency status for 1 year can apply for naturalisation as a British Citizen, the first step towards gaining a British passport.

Many EU nationals have lived in the UK exercising their treaty rights for far longer than 5 years. One tip to note is that when making an application for permanent residency you can submit evidence that you have exercised treaty rights for your whole period of residence in the UK (or at least the last 6 years). This means that you can apply for naturalisation as soon as you receive your permanent residency card as you have already shown that you have held permanent residency for at least 1 year.

  • 3) Collate evidence in preparation for applications- alongside/prior to documenting your status, you should be collating evidence that you have been exercising your treaty rights in the UK. It is also worth collating evidence relating to your absences outside of the UK as these need to be declared when applying for naturalisation. As EU nationals will not have stamps in their passports showing their entry into and departure from the UK this will take time so it makes sense to get started now.

  • 4) Make the application sooner rather than later- again, whilst there is no guarantee that any changes to immigration laws will exempt EU nationals currently residing in the UK, it is preferable to obtain a document showing that you were exercising your treaty rights prior to the referendum if at all possible. Further, there is likely to be a large increase in the number of applications being submitted from EU nationals and processing times are expected to increase considerably.

From an employer’s perspective, it is also advisable to assess your current workforce and identify who may be affected – this will include not only EU nationals, but also spouses and family members of EU nationals. You should also consider whether any new recruits you intend to employ may be affected. In both cases it may be sensible to take the steps above to document the status of your workforce.

Samantha Prosser is a solicitor at leading employment law firm BDBF.