Updated article - original article published 6 July 2016.
Despite positive social media campaigns in the wake of the EU Referendum, such as '#LoveOurEUStaff', highlighting the important and positive contribution of EU nationals, many EU nationals working and residing in the UK, across many industries and in both the private and public sector, are uncertain as to what Brexit will mean for them. In order to address such concerns, employers need to proactively engage with their workforces to deliver clear messages to staff around this issue.
The current legal position
No changes to the current system have been made or are planned to be made at this time by the government before our departure from the EU. EU and EEA nationals therefore still have freedom to work without restriction in the UK and this is unlikely to change for the foreseeable future. There will be a negotiation period of up to two years (extendable by agreement) for the UK to leave the EU, which runs from when the UK government triggered the notice to leave under Article 50 of the Lisbon Treaty, on 29 March 2017. As such, the existing rules will still apply until the negotiation period has concluded and the withdrawal agreement takes effect.
What is likely to happen?
There does appear to be some cross-party support for the position that existing EU nationals resident in the UK should be allowed to continue to reside and work here even after the UK leaves the EU. This was evidenced by the Labour motion for existing EU migrants 'right to remain' passing a House of Commons vote on 6 July 2016. Unfortunately, this is a non-binding vote and so does not directly affect Government policy. However, the Brexit Secretary, David Davis, has stated that he has no intention of imposing a cap on EU migrants post-Brexit.
The government has published a paper (here) on the future of EU Citizens in the UK post-Brexit. The government envisages that EU nationals who have been resident in the UK for over five years at a set 'cut off point' will be granted special leave to remain, and work, in the UK. The 'cut off point' is likely to be between 29 March 2017 and 29 March 2019 and will be determined in negotiation with the EU27.
Subject to the details of any negotiations agreed between the UK and the EU around the principle of freedom of movement, if there is a wholesale exit from the EU, going forward, we can only surmise that employers will find it harder to recruit EU nationals from abroad in the future, with all overseas employees being subject to a points based system. This will almost certainly be the case if the current points based system is changed to mirror that of Australia, resulting in increased administration for employers and a possible deterrent for lower paid workers from seeking work in the UK. Recent reports and immigration are already showing a noticeable decline in net migration. Employers should monitor the situation closely for further developments.
What should employers think about now?
It is important for employers who do have EU nationals within their workforce to take the following action.
Reiterate the current legal position
This will help to dispel some of the myths and confusion that have arisen around Brexit and the legal status of EU nationals at the present time. By making clear that nothing has changed at the moment and is unlikely to for the foreseeable future around EU nationals, staff have greater certainty that the existing system is still in effect and that their short term plans should not change. It can also be an opportunity to set out any commitments around clear communication channels and updating staff of future plans if appropriate, if the position changes
Reassure existing EU employees
The scale and nature of the measures that employers could put in place range from
- providing simple but consistent messages from the senior management team to the collective workforce as a whole and/or to specific employees who are likely to be affected (EU Nationals, dependants of EEA nationals, partners of EU Nationals) around future plans and commitment to retain existing EU staff
- reminding your workforce and ensuring all staff are aware of your Dignity at Work and Equal Opportunities Policies and in particular, that any actions or behaviours which may amount to bullying and harassment and/or less favourable treatment on the grounds of race, nationality, colour or any other protected characteristic will be regarded as gross misconduct and will be dealt with as a disciplinary offence;
- ensuring that staff and management teams are aware of and deal with any of the above behaviour promptly and robustly through proper internal processes and
- providing specific assistance to staff via helplines or support run by immigration specialists in exploring options of Permanent Residency (for those who have lived in the UK for more than 5 years) or for those with less than 5 years in the UK applying for a Registration Certificate to assist in the event of any future Permanent Residency application being made.
For more information please contact me, or your usual Bevan Brittan contact.
Immigration Law Services
Bevan Brittan LLP has a specialist immigration team who provide business immigration services. The team would be happy to discuss with you any concerns or queries you may have about anything raised in this bulletin or any support your organisation may require.
We have recently developed a webinar aimed at line managers with responsibility for hiring foreign nationals and the importance of obtaining appropriate right to work documents. The link below is an extract from that webinar.