Following the outcome of the referendum, many businesses are
concerned that they may lose the skills and expertise of staff engaged
from the EU. Our employment specialist, Omer Simjee explains the
current legal status of EU staff and provides some tips on helping them
protect their right to continue to work and live in the UK .
Current UK immigration rules for citizens
of EU member states
One of the fundamental principles of EU law
is freedom of movement and establishment,
under which citizens of all EU member states
have the right to freedom of movement for
workers within the EU.
Under the present law, while the UK remains a
member of the EU, citizens of EU states have
the right to enter and remain in the UK. As
this is a right that derives from EU law, they do
not require a permit from the UK to exercise
that right. However, once resident in the UK,
they may apply for a registration certificate
that proves that they are exercising their
rights to live or work in the UK.
EU citizens who have resided in the UK for
five continuous years acquire the right of
permanent residence in the UK. After a
further 12 months of UK residence, a holder
of permanent residence may apply for British
citizenship.
The effect of Brexit on UK visa rules for
EU citizens
The rights of EU citizens to move freely to
and live and work in the UK are based on EU
law. When the UK leaves the EU, those rights
will therefore fall away.
It is not yet clear whether the UK would (or
could) negotiate special agreements with
the EU or other individual states to deal
specifically with the right of their citizens to
live and/or work in the UK. The possibilities,
as I see them, are:
The UK will enter into agreements
with the EU or with Ireland and other
individual EU countries that will allow
their citizens to live and work in the UK
either on a wholly visa-free basis or a
less restrictive basis than applies to other
countries. For example, such agreements
may allow citizens of other EU countries
to come to the UK if they have a
pre-existing job offer in the UK or are
financially independent of the UK state
There will be transitional arrangements
under which EU citizens and their families
who are resident in the UK and have been
UK resident for a specified minimum
period or are in full-time employment
will be given visas to remain until their
employment or residence ceases. New
EU entrants to the UK will need to have a
visa in the same way as non-EU citizens
do now or will have new rights under new
agreements negotiated between the UK
and their home countries
There will be no transitional arrangements
and no useful agreements will be
negotiated. Instead, within a specified
period, all EU citizens will need to apply
for fresh visas using the existing non-EU
visa categories and leave the UK if they
are not granted. New entrants to the UK
will need to have a visa in the same way
as non-EU citizens do now. In my opinion,
this is an unlikely outcome as it would
cause chaos in the employment and
financial markets and probably breach
human rights law in many instances.
What can EU staff living in the UK do to
safeguard their positions?
At present, the UK remains a member state
of the EU and unless and until exit actually
occurs, their rights to live and work in the UK
should not be affected. The position after
Brexit takes place is not yet clear and will
depend upon what arrangements are put in
place by the UK Government. However, there
are some steps they may be able to take now
to put them in a better position. They are:
EU nationals that have been resident in
the UK for five years or more can apply for
a permanent residence card. This shows
that they have a right of permanent
residence in the UK. The right is derived
from EU law but in my view it is unlikely
that permanent resident status will be
withdrawn from EU citizens who have
acquired it.
To apply for a certificate of permanent
residence, individuals will need to
complete an application form and provide
documentary evidence proving that they
have been living and exercising their EU
Treaty rights in the UK for the past five
years, together with a fee of £65.
Family members may also qualify for
permanent residence if they meet the
requirement. They will need to complete
their own separate application forms.
EU nationals that have been resident in
the UK for less than five years can apply
for a registration certificate showing they
are exercising their EU rights to be in
the UK. In the event that the UK enacts
transitional rules that allow EU citizens
who are resident at the time of Brexit to
remain in the UK, such a certificate may
be useful in showing UK residence.
To apply for a registration certificate,
individuals will need to complete an
application form. This form is then
submitted to the Home Office with the
relevant supporting documentation and
an application fee of £65. Alternatively,
they can make the application in person
at the Croydon Premium Service Centre
for an additional charge. The application
will be assessed on the same day if they
elect to use the premium service.
Direct family members (for example
husband and wife) may also qualify for a
registration certificate or a residence card
as a family member of an EU national.
The application process is similar to an EU
national’s.
EU nationals who already have
permanent residence can apply for
naturalisation as a British citizen.
Citizenship has advantages over
permanent residence as it cannot be
withdrawn, whereas permanent residence
may cease if the holder ceases to have a
home in the UK.
Irish Citizens
The UK has a Common Travel Area (CTA)
with the Republic of Ireland that predates its
entry into the EEC/EU. The CTA allows free
movement between the UK and Northern
Ireland and UK. There have been various
assurances from pro-Brexit politicians that
following exit, the CTA would remain in place.
This would allow Irish citizens continued
freedom of movement between the UK and
Ireland. However, this is subject to further
discussion between the UK and Ireland as
exit arrangements are negotiated and put in
place.
Other countries
Switzerland is not a member of the EU or
European Economic Area and Norway,
Iceland and Liechtenstein are members
of the EEA but not the EU. However, each
of these states has entered into reciprocal
agreements with the EU regarding free
movement. I assume that the post-Brexit
UK immigration arrangements for citizens
of Switzerland, Norway, Iceland and
Liechtenstein will be the same for as for
citizens of EU states.
Summer 2016
Download Summer 2016 issue (pdf)
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