Support EU employees in the run-up to Brexit

30 Mar 2017 By Ilda de Sousa

Now that Article 50 has been triggered, many employers will be hoping for certainty on the future status of EU nationals working in the UK

The recent House of Commons’ rejection of the House of Lords’ amendment seeking to guarantee residency rights of EU citizens in the UK post-Brexit only compounded an already unclear picture and exacerbated employers’ concerns.

Until this issue is decided, organisations face uncertainty about their future workforce, and many EU nationals will continue to live in limbo, which is bad for morale and, potentially, productivity.

The good news is that there are strong indications that, after the UK leaves the EU in March 2019, the government will grant a form of permanent residence to those who have resided in the UK for at least five years as a qualified person; ie as a worker, self-employed, self-sufficient, student or jobseeker before a yet to be determined cut-off date. This could be when we eventually leave the EU but there is a distinct possibility it could be sooner – possibly even before the Article 50 trigger date. It is hoped that EU citizens who have been living in the UK before the cut-off date but have not yet completed five years as a qualified person will be given temporary permission to stay in the UK after Brexit and given the chance to complete the five-year period. 

What can employers do now to help their employees?

To ease employees’ concerns and help plan for the future, employers may wish to conduct an audit of their EU employees (and family members of EU nationals) to ascertain whether they can meet the current five-year residency requirements. 

As part of this process, employees should be encouraged to collect documents evidencing their employment status and periods of stay in this country. Employees will need to show, for example, that they have not spent more than six months outside the UK in any 12-month period over the five years relied on.

Employers may wish to offer employees access to immigration advice – it may be that individuals qualify under 10-year-long residence rules or other immigration categories. They may also have concerns about the implications of Brexit for their dependants and other family members, and are considering their future in the UK on this basis.

An audit may not yet provide all the answers but will at least help to identify gaps and issues for when the residency position is clarified.

What should qualifying employees be doing now? 

A case can certainly be made to encourage individuals who have already been in the UK for five years to apply to the Home Office now for a registration certificate or a document certifying permanent residence. These documents do not in themselves confer any rights, but are evidence that the government has acknowledged the individual is exercising their right of residence or has acquired permanent residence.

In addition, if an individual has been living in the UK for at least six years, they could consider applying to the Home Office for naturalisation as a British citizen after obtaining a document certifying permanent residence.

Many employers are adopting a wait and see approach to Brexit preparedness. It is, of course, perfectly valid for employers to await the outcome of negotiations regarding the future status of EU nationals resident here before communicating with their workforce on the topic. However, organisations that tend to employ a lot of overseas staff may find advance warning on their resourcing and vulnerabilities helpful. Employers can benefit from a proactive approach when it comes to immigration planning for their workforce.

Sadly, where employers won’t yet be able to provide much guidance is for employees with fewer than five years’ residency. It is possible that they may only be eligible to remain in future if they are highly skilled and can be kept here on a quota basis. It will be interesting to see if this is an area where prime minister Theresa May surprises us all after triggering Article 50.

Ilda de Sousa is an immigration law partner at Kingsley Napley

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