Brexit and business immigration: how can UK firms safeguard EU workers?

The immigration implications for EU workers in the UK remain a key question. So what might happen and how to prepare?

The legal process of withdrawing from Europe following the result of the referendum on 23 June should take at least two years. While nothing will change immediately, the likely effects on EU workers based in the UK remain a key question. So what are the practical implications for UK companies and their EU staff?

The present

Currently it is business as usual. The UK remains an EU member until it formally leaves around two years after giving notice under Article 50 of the Treaty on the European Union. EU workers already in the UK can continue to live and work here and retain the automatic right to work in the UK. EU citizens can continue to relocate to the UK without a visa. The same position applies to British citizens working in other EU countries.

What can you do now?

During this period EU citizens may wish to consider the actions they can take to safeguard their position. Any EU citizens who have or during the transition period will have spent five or more years working in the UK could apply for permanent residence (PR). PR takes the holder outside of immigration rules meaning any changes to the right to free movement would not affect them. EU citizens who are not eligible for PR could instead apply for an EEA registration certificate to evidence their current right to live and work in the UK.

We recommend that employers who are willing to support their EU workers and provide reassurance to them about their immigration status actively investigate PR eligibility with them.

Those who have held PR for at least 12 months can apply to naturalise as a British citizen, which provides a right to a British passport. As this application has an impact on workers and their family including original citizenship, voting, military service and tax position, advice should be taken on any proposed applications.

The future

It is hard to predict the future with certainty. Separate EU trade negotiations may affect the longer-term ability of EU citizens to work in the UK. These could lead to a Norwegian-style model permitting free trade in exchange for financial contributions to the EU and accepting full free movement of workers. Alternatively the UK could try to negotiate free movement with a smaller group of states (e.g. Belgium, France, Germany, Italy, Luxembourg and the Netherlands). A third alternative – bilateral deals with individual countries – would be time consuming and complex.

Once the UK leaves the EU European citizens relocating to the UK will only be able to live and work here by complying with whatever immigration rules the UK introduces. If free movement of workers is not retained and no bilateral deals are in place, Leave campaigners have argued for a points-based system to govern how EU citizens qualify for UK visas.

The UK's existing points-based system for non-EU visa applicants gives us insight on how this could work. Currently it applies to high-skilled workers performing graduate-level roles, paid UK market rate minimum salaries. Studies show that most EU workers currently in the UK would not meet those conditions. A simple option to provide the flexibility for lower skilled workers might activate the currently frozen Tier 3 of the current points-based system for low-skilled non-EU workers.

Short-term EU travellers to the UK for business or tourism are unlikely to need formal visas.

What can you do?

A requirement for EU nationals to obtain visas will involve more red tape, cost and planning for UK employers. Recruitment teams may not have access to the talent pool they currently do and may need to give greater thought to visa eligibility and lead-in times for urgent hires.

HR teams will need to continue to focus on the compliance aspects of managing an international workforce. UK-based businesses will need to continue to show they fully comply with current rules to protect their brand with customers, their market reputation in this social media age, their contractual relationships with business counterparties, and their standing with the regulators who will determine future applications. The Home Office continues to ramp up its auditing and removal of sponsorship rights for employers not complying with immigration rules with, for example, the roll out of the stricter right to work requirements in the Immigration Act 2016 on 12 July 2016.

We recommend that all employers, but especially those working in perceived higher risk sectors (financial services, care homes, hospitality, retail, engineering and construction) undertake a fresh audit of current employee visa status, consider future resourcing plans and take advice where needed. We also recommend employers consider the merits of expediting medium term EU national transfers to the UK so that they can benefit from the current right to free movement.

Employers may also wish to consider with their British citizen staff whether they are eligible for dual citizenship with another EU country based on EU ancestry or long-term residence in another EU state. This will preserve the right to travel and work in Europe regardless of future changes.

Vikki Wiberg is senior counsel in the Employment, Pensions & Mobility group at Taylor Wessing