David Winnie, Head of Sport and Immigration at Ronald Fletcher Baker LLP looks at the recent dramatic referendum outcome on 23 June 2016 and considers the procedures the UK may now adopt to formally withdraw from the EU, as well as the potential impact this withdrawal may have on EU citizens currently living in the UK. David also examines the current UK points based visa system and the possible consequences for those looking to apply in future.
Following the decision, David Cameron announced his resignation and admitted the country needed "new leadership." It is uncertain at this stage who this new leader may be - Boris Johnson, who many thought would be one of the main contenders, has pulled out of the leadership race. Aside from the economical and political fall out from the "Leave" Vote, the immediate consequences for EU nationals in the UK are uncertain and likely to be wide ranging and far reaching.
The Lisbon Treaty – Article 50
Article 50 of the Treaty on the European Union establishes the procedures for a member state to withdraw from the EU. Under this Article, the UK must notify the EU of its withdrawal and the EU will then be obliged to try to negotiate a withdrawal agreement with the UK. The results of the vote in itself do not provide the EU with notification – this must be done formally and in accordance to procedures put in place by the Treaty on the European Union.
Over the next few weeks, British and European leaders will begin negotiating the terms of Britain's departure and it goes without saying that Britain's exit from the European Union will affect the British economy and immigration policy. It is unlikely we will know the true consequences for at least a few years but it is likely that whilst terms of withdrawal are being negotiated, there would be no immediate changes to the immigration rules. This is because of the significant impact it would have on UK employers and employees.
Impact on EU Citizens
Once Britain invokes Article 50, it will have 2 years in which to negotiate a new treaty to replace the terms of EU membership. This means that there will be no immediate consequences for EU nationals in the UK and free movement of people will continue. EEA nationals who have been residing in the UK for at least 5 years and have been exercising their Treaty Rights (by working, being self-employed or studying) may wish to consider their options for applying for a Permanent Residence Card. This would be equivalent to "Indefinite Leave to Remain" under the UK Immigration Rules and may allow them to naturalise as a British citizen after a year.
In the short term, it is possible that Britain will negotiate an agreement which would continue to allow free movement between the UK and the EU but if this fails, it is likely EU nationals would face the same migration criteria which applies to non EU nationals wishing to live and work in the UK. The current immigration rules are restrictive and due to government policy over the years, change regularly.
UK Points Based System (Businesses & Workers)
The current UK Immigration Rules stipulate that non EU citizens wishing to work in the UK, must be sponsored by a UK employer. The current points based system was introduced between 2008 and 2010 and is not without controversy.
For example, businesses wishing to sponsor migrants must first apply for permission to do so, by way of applying for a Sponsor Licence. These applications tend to be complicated and if granted a Sponsor Licence, businesses are required to "police" their workers or face hefty fines. Further, employers are expected to pay these workers a minimum salary of £20,800 (due to increase to £30,000 in 2017) but this may be more depending on the job role the employee is required to undertake.
Initial reports indicate that it is likely the majority of EU workers in the UK will not be eligible to apply for a Tier 2 visa (working visa) as they do not work in "highly skilled" roles and are not paid the minimum salary as set out above. There is also a cap on skilled work visas so even if the EU national worked in a highly skilled role, there is a possibility they may not be eligible for a visa.
Brexit is unlikely to make a significant difference to overall immigration to the UK. Britain is required to negotiate a new agreement and has 2 years to do this. There are currently 3 million EU migrants in the UK and the vast majority of them hold EEA Permanent Residence Cards. It is likely now, that EU migrants who are eligible, will be able to apply for naturalisation and become British citizens. Those who do not have a Permanent Residence Card will be making applications to do so and it will be interesting to see how the Home Office cope with the pressure of processing these applications within the 6 month statutory requirement period.
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