Article 50 has been triggered, the two year ‘Brexit clock’ has begun to tick and formal negotiations for the terms of the UK’s exit are set to commence. At the end of this two year period, the UK will cease to be a member of the EU and, accordingly, free movement of EEA and Swiss nationals as we know it will come to an end.
At present, and until the UK leaves the EU, the UK is required to comply with EU law. So EEA/Swiss nationals can continue to come to live and work in the UK without restrictions. Any change to such rights will only take effect once the UK has formally withdrawn from the EU at the end of the process.
It is likely that there will be some transitional arrangements and these may differ, depending on an individual’s date of entry to the UK, and whether this was before or after the referendum.
There are a number of steps that EEA/Swiss nationals currently in the UK can take to protect their position post-Brexit, and employers will wish to take measures to safeguard their workforce.
Tips for EEA and Swiss nationals living in the UK
1. Permanent residency
- If you have lived in the UK for five years already and have been exercising your ‘Treaty rights,’ you can apply for a permanent residency document which will be evidence of your permanent right of residence in the UK.
- ‘Treaty rights’ include working, studying, looking for work, being self-employed or being self-sufficient. Living here while not in any of these categories does not bring the same rights and this may be an issue for non-EEA employees who are in the UK as the spouse of an EU national who did not come to the UK to work or study.
- Family members of EEA/Swiss nationals who acquire permanent residence will also qualify on the basis on their family relationship provided that they have also been living in the UK for a continuous five-year period.
2. Right to reside
- If you have not yet acquired permanent residency but have been exercising your Treaty rights, you can apply for documentation confirming your right to reside in the UK.
3. Begin exercising Treaty rights
- If the criteria is not met for permanent residency or the right to reside, you should consider exercising Treaty rights for example through seeking employment or undertaking work through self-employment, so that you start the clock running on acquiring a right to permanent residency.
4. British citizenship
- You are eligible for British citizenship once you have held permanent residency for at least 12 months.
- To prevent losing your existing nationality, you should check before applying for British citizenship whether your home country allows dual nationality.
- You should seek legal advice if you have any non-EEA family members as obtaining British citizenship could impact on their ability to remain in the UK.
5. Practical steps
- You should start collecting original documents evidencing your residence and status in the UK which cover the duration of the time you have spent in the UK. Evidence is also required to demonstrate that you have been exercising your Treaty rights.
- Documentation can include payslips, P60s, employment contracts, tenancy agreements, records of studies, certificates evidencing study, bank statements, council tax statements and utility bills.
- If you (or your EU partner or spouse) are not working or self-employed, you will need to prove that you have been in receipt of comprehensive private medical insurance – being entitled to use the NHS is not sufficient.
- You should collate a record of any absences from the UK.
Points to note:
- Unsurprisingly, there has been a very significant increase in applications for permanent residency and these are being carefully scrutinised. In the last two quarters of 2016, approximately 28% of applications for permanent residency by EU citizens were refused.
- Applications can take up to six months to process so we would strongly recommend seeking legal advice prior to submitting an application to avoid any further delays or complications.
Tips for employers
- Employers should analyse the composition of their workforce and determine which employees are EEA nationals or the spouses of such nationals.
- Employers can help to reassure their workforce by providing information sessions for employees, and may consider supporting applications by providing access to legal advice.
- Employers can nominate a representative who will be responsible for dealing with employee queries and provide employees with updates, as and when, they become available.
- Employers should ensure that anti-harassment and bullying policies are up-to-date and consider diversity training. Inevitably race and nationality are bound up in immigration status and any difficulties must be carefully handled in order to avoid discrimination claims.
- Employers should consider checking that the records they hold for employees, demonstrating their right to work in the UK are up-to-date. If, in the future, employers wish to apply for sponsorship licences for migrant workers, earlier breaches of these requirements may prejudice their application.