Over 3.3 million EU nationals are estimated to be living and working in the UK.
What their status will be when (or indeed if) the UK consciously uncouples from the EU is uncertain. There have been no changes in the law as of yet and none are likely to be announced before Article 50 is triggered. Whilst the ‘Leave’ campaign made a number of positive noises about those currently lawfully present in the UK being able to remain, it would be wise for employers to start taking steps now to make sure that their EU employees’ status is as secure as possible.
1. Get documents. Now.
At present, EU nationals do not need to hold anything more than a passport or ID card to reside in the UK. Any employer is entitled to accept this as evidence of their right to work.
An EU national is able to come to the UK for an initial period of 90 days but to stay longer they are meant to undertake a ‘qualifying activity’, which is usually employment, self-employment or study. The Home Office will happily and, relatively expediently, issue documents to confirm an EU resident is lawfully in the UK, known as Registration Certificates. The cost of these are only £65 per person and minimal evidence is required to demonstrate the requirements are met - it can be as simple as a passport, a bank statement and a wage slip. Employers must either stamp the form or write a supporting letter to confirm terms of employment.
We do not know if those who can confirm they are lawfully present will be able to remain permanently but that fight in the future might be easier if the Home Office has already accepted that you are exercising your rights as an EU national. Encouraging your employees to look at this would be a pragmatic first step.
Things may change quickly so it’s best to apply sooner rather than later.
2. Make it a permanent solution.
If an EU national can show they have undertaken a qualified activity continuously for five years or more, they have obtained a right of permanent residence in the UK. A right of permanent residence is a settled status in the UK and those with it are generally free from immigration control. It seems incredibly unlikely people with this right will be asked to depart the UK following Brexit. Again, a document is not necessary for this but is highly advisable.
The cost for a document certifying permanent residence is again only £65, but you will need clear evidence as to how you have been ‘qualified’ for the past five years. This can be from a combination of qualifying activities, e.g. a period of studying with the remainder in self-employment. Matters such as periods of illness and maternity leave are considered and do not necessarily prohibit applications succeeding. You may be in a position to assist employees with key supporting documents such as P60s, wage slips and contracts.
3. Can they naturalise?
In order to naturalise EU nationals have, since November 2015, had to get proof of their permanent residence before they can apply. Many are not aware of this change and a pilot programme where you could apply for permanent residence and naturalisation at the same time has been scrapped.
EU nationals who have permanent residence can apply to naturalise immediately if they are married to a British national. Otherwise they must hold permanent residence for a further 12 months. Naturalisation applications can be complex and there are several additional requirements. It is always advisable to seek legal advice or to use a checking service from a local council. Obviously employers can expect naturalised employees to be able to stay post-Brexit. Losing citizenship requires someone to have committed incredibly serious offences or to have obtained it fraudulently in the first place.
This isn’t the best option for everyone though, if EU nationals have non-EU/non-British family members who are dependent on them, sometimes it is better to remain European otherwise this can complicate their family members’ routes to settle themselves. Dual nationality can sometimes prohibit this.
4. Make sure your records are in order.
The Home Office release detailed guidance as to how employers can confirm they have seen sufficient documents to confirm a foreign national’s right to work. At some point in the future, an EU national’s passport or ID card will no longer be sufficient. When plans are confirmed, talk to your EU employees about how they plan to continue residing here. Do they have settled status or is there another route they could move to? If you have a Sponsor Licence, this might be a way to keep a valued employee. If you don’t have one, they are not as intimidating to apply for as you might think.