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Andrew Dekany



26th August 2016



Brexit and immigration

‘What impact will Brexit have on my staff in the UK who are EU nationals?’ This is a question we have heard often over recent weeks.

From an economic perspective, the fall in sterling may temporarily impact the value of any remittances to family members in the home country. There may also be anxieties over racism. However, it is important not to alarm staff.

From a legal perspective, we think it unlikely that EU / EEA / Swiss migrants or family members in the UK before the referendum, or arriving in the next two years, will be affected. The UK is likely to remain a member of the EU for at least another two years, and is likely to continue to apply rules on free movement. While the UK Government has stopped short of guaranteeing the rights of EU / EEA / Swiss citizens already settled in the UK, on the basis that those rights should be considered in conjunction with the rights of UK citizens settled elsewhere in the EU, it is extremely hard to see how any accrued rights to permanent residence in the UK could be removed.

Furthermore, we do not currently anticipate that formal commencement of Brexit negotiations under Article 50, probably in 2017, will have any significance for UK immigration purposes unless, perhaps, there is an increase in EU migration before then. In those circumstances, the Home Office Affairs Committee of the House of Commons has recently suggested that the date on which Article 50 is triggered is a possible cut-off date after which EU nationals arriving in the UK would not be given the right to permanent residence.

In order to confirm their immigration status, therefore, and make convenient use of free movement rights, any EU / EEA / Swiss migrant with concerns, or concerned family members (including non-EU / EEA / Swiss nationals, whether part of the immediate or the extended family)  should now consider whether to apply for a permanent residence certificate or permanent residence card (if they have been lawfully resident in the UK continuously for the past five years) or apply for a residence certificate or residence card (if not).

Continuity of residence is not broken by certain prescribed periods of absence, but specific advice should be sought. Those considering whether to make an application for permanent residence should keep an accurate schedule of absences and preserve and maintain documentary records of work or any other connection to the UK. If eligible and already holding a permanent residence card or indefinite leave to remain, naturalisation as a British citizen may also be an option.

In order to reassure EU / EEA / Swiss staff, some employers are considering whether to fund immigration applications for them. Applicants (and any funders) should not underestimate the time required to prepare and check immigration applications in draft and supporting documents properly or the processing time for applications once they have been submitted to the Home Office.

Subject to the terms on which the UK negotiates its exit from the EU, some restrictions on free movement between the UK and the EU are likely by the end of 2018 if not before. Whether this takes the form of a points-based system similar to that which applies already to non-EEA nationals is, so far, unclear. It will no longer be as easy, however, for economically active or self-sufficient citizens to move from Berlin to London as it is to move from Bristol to London. We will keep you informed of developments.

If you would like to discuss any aspect of this article, please get in touch with Andrew Dekany or your usual Thrings contact.

Click here to read about the legal implications of Brexit and employment.

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