Brexit uncertainty and the future for EU nationals

The immigration status of millions of EU nationals living in the UK continues to be uncertain. What can employers do to manage their risk exposure and support employees through an uncertain time?

Shadows covering the union jack, questions rise over status of EU nationals
There are approximately 3.5 million EU nationals living in the UK, although precise numbers fluctuate depending on the source. Many are employed in roles critical to UK businesses.

Brexit immigration issues and the question of residency or citizenship

Following Brexit, the rights of the 3.5 million EU nationals in the UK is one of the key issues currently being negotiated in Brussels. According to one Home Office report, there were 28,502 citizenship applications from EU nationals between June 2016 and June 2017. This is almost double the number of such applications from the previous year (15,871).The UK and the EU have two years to negotiate the terms of Brexit after which the UK will cease to be a member of the EU and the current freedom of movement laws will no longer apply to the UK (unless negotiated otherwise).Over the last months we have seen a series of comments, proposals and even a leaked Home Office document, all touching on freedom of moment. It is therefore unlikely that there will be any agreement in the short term, leaving EU nationals in the UK facing continuing uncertainty over their future status.

Applying for British citizenship

It is unsurprising that many are now seeking British citizenship as an insurance policy, especially when they originate from a country that will not penalise them (through loss of their original nationality or by some other means) when naturalising in the new country.Most of the British public are not aware that EU nationals cannot apply for British citizenship directly, but rather they first need to apply for permanent residency.

When should EU nationals apply for UK permanent residency?

Should EU nationals submit permanent residence applications now? That is a personal decision. However, the Home Office is currently discouraging their applications for UK permanent residence. The Home Office has a finite amount of resources to evaluate such applications and the UK government’s current position post-Brexit is to cancel permanent residence applications granted under EU law and require new applications from all EU nationals for a new status document.It is understandable that many feel apprehensive and nonetheless are choosing to apply for permanent residency now. This is especially true for those intending to then apply for citizenship before Brexit.Neither permanent residence nor British citizenship applications by EU nationals currently require sponsorship by a UK employer. As such it is not the employer’s responsibility to advise EU nationals about either type of application. However, when faced with an apprehensive workforce some employers may wish to offer their employees assistance by pointing them in the direction of professionals who can advise.

Best Brexit advice for business

The best advice for businesses generally in the run up to Brexit is to know their workforce. This could include undertaking an audit of all current employees and their immigration status.
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They will then have an idea of who is most likely to be affected as the terms of Brexit are negotiated. When undertaking such an exercise, employers should be careful not to do anything that is or could be perceived as discriminatory towards or against any particular section of their workforce.Businesses that are particularly reliant on EU employees may like to consider putting in place a contingency plan in advance of Brexit so that they can manage uncertainty and take account of possible future staffing and financial implications of Brexit on their business.It could be a sensible step for employers to try to manage their own risk exposure, and provide support and reassurance to their employees. This could include taking the opportunity to review their business practices, training new staff, and reviewing HR processes with a view to be ahead of the curve for whatever new immigration system is initiated.

Post-Brexit workers' rights

At the time of writing this article, there are no immediate changes to the rights of EU nationals living and working in the UK. This is unlikely to change until Brexit.While there is a degree of uncertainty, what we know so far is that the Home Office’s current agenda and messages suggest the implementation of transitional arrangements. This could include the possibility for EU nationals residing in the UK to apply for either a settled status if they have lived in the UK continuously for 5 years or temporary permission to stay until they have achieved that five-year threshold. EU nationals who would like to remain residing in the UK should do what they can to protect their position now.This article was written by Claire D Nilson and Hodon Buraleh.  Claire Nilson is counsel and head of the Immigration & Global Mobility team in London, at Faegre Baker Daniels, and Hodon Buraleh is a paralegal at Faegre Baker Daniels.For related news and features, visit our Immigration section.Relocate’s new Global Mobility Toolkit provides free information, practical advice and support for HR, global mobility managers and global teams operating overseas.Access hundreds of global services and suppliers in our Online DirectoryClick to get to the Relocate Global Online Directory  

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