The status of EU nationals in the UK remains far from certain following the outcome of the Referendum in June. For particular sectors, such as construction, retail and leisure, where there is a heavy reliance on EU labour, limiting the free movement of EU workers creates a huge problem.
Despite the uncertainty there are some practical steps that can be taken now.
- All workers must be able to demonstrate a right to work in the UK:
- UK citizens do so with a UK passport;
- EU nationals have a right to work on the basis of their free movement Treaty rights; and those from outside the EU have to demonstrate a right to work under UK immigration law.
If the UK does leave the EU, then it is likely that EU nationals will no longer have the right to freely live and work in the UK. Immigration from the EU was a huge part of the referendum debate and the UK Government has promised that EU nationals will be subject to greater immigration control.
EU citizens who haven’t already done so, should seek to clarify their existing status in the UK. Many will not have been aware that they can formalise their status at any time, if they are deemed to have been lawfully exercising treaty rights.
There are three steps to formalising status (where eligible):
- Less than 5 years’ residence in the UK: apply for a Registration Certificate (which confirms the right of residence);
- With 5 years’ residence in the UK or more: apply for a Permanent Residence Card; and
- After holding a Permanent Residence Card for 12 months or more: apply for UK citizenship.
The number of applications from EU nationals has increased dramatically after the referendum with some applications taking up to 6 months. Some are reluctant to incur the time and expense on these applications and there is no legal requirement for them to do so at the moment. However, if free movement rights do come to an end it will be incumbent on the individuals to demonstrate that they have a right to work and some form of registration will be required.
It is also important to note that EU staff that undertake international assignments for 6 months or more may inadvertently reset the clock for the purposes of qualifying for permanent residence. Therefore extra care should be taken when planning any overseas postings.
What can HR do?
It is key for employers to recognise that the immigration issues have yet to be determined and that at the current time, there is no change to the rights of EU workers in the UK. Businesses who make negative decisions about hiring or retaining EU citizens, based on their nationality, will expose themselves to claims for discrimination.
Looking forward however, HR teams need to undertake some planning and communications around the impact of Brexit on immigration status.
We are advising employers, especially those with a particular reliance on EU talent, to openly encourage EU staff to make an application to formalise their status in the UK. Some employers are offering financial support for staff to do so.
HR teams we are speaking to are already getting requests from individuals who need assistance with status applications, and to obtain the supporting documents they require to demonstrate residence, employment and tax. It is advisable to make staff aware of the support that can be offered at the same time as encouraging them to formalise their status.
We advise that HR teams conduct an audit of their UK staff to identify potential skills gaps which would arise from the imposition of limits on EU migration. For employers with branches outside the UK, we also recommend they audit their overseas employee population and consider the impact of limits being imposed on UK staff working abroad, for example, the cost of repatriation or redundancies.
Unfortunately, the status of EU workers in the UK is intrinsically bound up with the wider negotiations on the terms of the UK’s exit from the EU. This means that it could be many years before we have any certainty the position. Constantine Law are on the working group of the Immigration Law Practitioners’ Association which is lobbying the government to give more clarity on the future status of EU workers, as this is greatly needed.
Caroline Glacken is a Senior Associate at Constantine Law Limited.