Crystal ball gazing – possible immigration law implications of Brexit

With events moving rapidly towards a referendum on staying in or leaving the EU, the implications are huge. One of the major difficulties for both individuals and businesses at the moment is that the implications, in many respects, are very unclear. This may be due, in part, to brinkmanship where the EU and the UK

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With events moving rapidly towards a referendum on staying in or leaving the EU, the implications are huge.

One of the major difficulties for both individuals and businesses at the moment is that the implications, in many respects, are very unclear. This may be due, in part, to brinkmanship where the EU and the UK Government suspect that uncertainty, where all bets could be off, is more likely to result in a stay in vote.

The implications for immigration law, both in terms of work, studying and family law are incredibly complex bearing in mind there are at least 2.3 million EU nationals living in the UK with about 80% working here and a similar number of UK citizens living abroad.

Work permits – what could happen

Should the UK leave the EU, new EU nationals wishing to enter the UK may be required to apply for work permits, with the same requirements which apply to those who seek to enter under the Tier 2 points based system. This would limit EU nationals entering to Higher Skilled workers and their families rather than low skilled workers. It has been reported that on average only about 20% of EU migrants who came to Britain between 2004 and 2014 were doing higher-skilled work.

Therefore it is likely that any decisions relating to net migration within Europe will seek to encourage high skilled workers and business and limit low skilled.

Business Implications

A huge number of small business employers, those who wouldn’t historically have brought in specialist workers from non-EU countries (which more typically apply to bigger businesses) might need to invest significant time and money on applying to becoming sponsors. Would they bother?

Many employers will also be concerned about employment law if they currently employ EU workers and face the choice of having to sponsor those employees and comply with stringent Immigration Rules. If employees no longer have the right to live and work in the UK on what basis can they be dismissed and even if they can be validly dismissed are they due any compensation? What about confidential information and so on?

How would the UK leaving EU effect those who are currently living in the United Kingdom?

Historically with any change within Immigration law there has been a transitional period, a period whereby those who are currently here can remain until settlement. There is evidence to suggest that there would be no need for restrictions on EU citizens coming to the UK as students or tourists and those who can prove they are “self-sufficient” would also be permitted to live in the UK.

It seems most likely that under any transitional arrangement that those EU citizens already living and working in the UK would retain their existing rights.

What many people don’t realise is that the existing free movement provisions already include some legal stipulations :-

  • European nationals are governed by the Immigration (European Economic Area) Regulations 2006. This requires those European nationals wishing to exercise free movement rights to be either a worker, self-employed, self-sufficient or a student. As a self-sufficient person or a student you must have comprehensive sickness insurance to be considered a qualified person.
  • Regulation 6. confirms that a, “qualified person” means a person who is an EEA national and in the United Kingdom as— (a)a jobseeker; (b)a worker; (c)a self-employed person; (d)a self-sufficient person; or (e)a student. Under regulation 14 (1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.
  • There are already European nationals who are living in the UK not in accordance with the regulations but yet feel they have a right to live in the United Kingdom. Many EEA nationals take the free movement legislation for granted not realising that yes whilst they have the right to move freely they must still be a qualified person to remain here.

Should EU individuals living and working in the UK plan ahead now?

As the referendum will be taking place in June 2016, should you, as an individual, start thinking about your position within the UK? Are you considered a qualified person? Have you been a qualified person for the last 5 years?

For EEA nationals you can apply for citizenship after 6 years and prior to that you can apply for permanent residence after 5. However, in order to do that you must have been a qualified person throughout the duration of that 5 year period without any gaps.

If you are an EU national currently living in the United Kingdom and you are worried about the outcome and concerned about the consequences of the UK leaving the EU if you wish to continue living in the UK it is time for you to either apply for a permanent residence card or seek to apply for citizenship if you already have permanent residence. This would be the only way to guarantee your residence in the United Kingdom. You do not want to find yourself in difficulty if the public votes in favour of leaving the EU.

You do not want to be caught up in the panic and pandemonium of those who waited until the outcome of the vote to make any application as the home office will be inundated with applications.

There is evidence that a surge in applications has already started – see here.

If we vote out and big changes happen expect a huge backlog and delay.

The Home Office lead time on applications is 6 months therefore it is best to make a decision pertaining to your immigration status now.

Dual Nationality?

If you have been resident in the United Kingdom for more than 5 years and have been a qualified person throughout you can apply for a permanent right to remain in the UK 12 months after receiving your permanent right to reside you can then apply for naturalisation. This would protect your right to live in the United Kingdom. The good thing about this route is that many European countries allow for dual nationality so this will give you guaranteed free movement without any restrictions.

Implications for business

What if you are a business and currently employing EEA nationals, will this have an impact of your role as an employer? Will you have to undertake the process of applying for a sponsorship licence in order to keep some of your best highly skilled staff who are EU citizens?

This is a very difficult question to answer. The outcome of the referendum is finely balanced and it seems unlikely, in practical terms, that even if the UK leaves the EU, that things will automatically change overnight.

I anticipate however that over the next few months’ businesses will start thinking about implications other than just the potential trading impact of leaving the EU. It is likely that many employees from EU countries may feel worried and seek assurances from employers, who in turn may want to at least start thinking about what they can and should do if things radically change after a vote to leave. At the very least, businesses may want to have someone they trust available to discuss immigration and employment law issues.

It is regrettable that there hasn’t been a great deal of information about the impact Brexit will have on EEA nationals currently in the UK or how the Home office will deal with the free movement issue. It appears they are only concerned about reducing net migration. Maybe this is an indicator that they are not worried about who is already here but about the future and potential increase in numbers should the UK remain in the EU.

This may be a good thing for those who are already here, exercising their free movement rights but again there is no certainty with what the government will do should the UK vote to leave.

Although there hasn’t been any definite’ s relating to the changes to immigration law should the UK leave the EU, if you are able to prepare yourself for the worst case scenario now would be the time.



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