The status of EEA nationals in post-referendum UK

As the dust settles on the EU referendum I have had many queries about the immigration status of EEA nationals.  

For now, there is no immediate change.  However, given the uncertainty the guidance from ILPA (the main UK body of immigration lawyers) at the moment, is that all EEA nationals should consider formalising their status in the UK.  I have heard that similar guidance is being issued to employees by a number of companies with reliance on EU talent.

For EEA nationals status can be formalised as follows, where eligible:

  •  Less than 5 years’ residence in the UK: obtaining a Registration Certificate (this confirms the current right of residence);
     
  •  With 5 years’ residence in the UK or more: obtaining a Permanent Residence Card; and
     
  •   After obtaining a Permanent Residence Card the next step would be UK citizenship (inevitably this will require considerations as to whether dual nationality is possible).

The Permanent Residence Card provides a permanent right to live in the UK and is broadly the same as Indefinite Leave to Remain.  Within the application there is a requirement to demonstrate that there have been no significant period/s of absence from the UK (i.e. you have to send a schedule of all absences from the UK in the past 5 years). Similarly, good records of residence, employment and tax are also required for these applications and these documents should be collated properly.   Those with less than 5 years’ residence should consider compiling this information now in any event.

We expect further clarity over the coming months and the current rights of EEA nationals won’t actually be altered unless and until an exit is achieved.  Even then, there are bound to be transitional arrangements put in place for those EEA nationals already living here.  However, those who have taken the above steps to formalise their status are likely to be in a more certain position going forward.  

One important point is that, although the future is less than certain, UK businesses who make negative decisions about hiring or retaining EEA nationals, based on their nationality, could expose themselves to claims in discrimination. Last week, I was approached about a dismissal which appears to be based solely on the fact of the employee holding a European passport and creates significant exposure to tribunal litigation and reputational damage for that business.

This article originally appeared in Linkedin