The House of Commons voted to reject the House of Lords' amendment to the so called 'Brexit bill', refusing to unilaterally guarantee the rights of an estimated 3.3 million EU citizens currently living in the UK. Now Article 50 has been triggered, this will be key to the negotiations.
The European Economic Area (EEA) and Swiss nationals currently have the right to enter, remain in, and work in the UK without a work permit. Britain now has two years to negotiate an agreement with the remaining 27 EU Member States, which determines the rights the 3.3 million resident EU citizens have, should they choose to remain post-Brexit.
There will be no change to the current situation until an agreement is reached and so the rights of free movement for EEA and Swiss nationals and their family to live and work in the UK will continue.
However, the outcome of the negotiations is unclear and the lack of a clear strategy is presently resulting in wild stories of EU citizens being repatriated. This is highly unlikely because adverse treatment and repatriation of EU citizens will be morally and politically unacceptable.
Hence, whilst it remains speculation at this stage, EU citizens living and working here are very likely to be protected. Options that may be considered include:
EU nationals already resident in the UK:
EU Nationals resident before Article 50 is triggered, and perhaps until the date of anticipated departure in March 2019, may be permitted to apply now or in the future for indefinite leave to remain. Almost 2 million of the EU nationals working in Britain already qualify for permanent status because they have been resident for five years or more, which is the current requirement. Those who do not meet the 5 year threshold may wish to apply for an EEA Registration Certificate to prove they are a qualified person with the right to live in the UK.
The administrative issue remains however, that our current system would take decades to process the prospective number of immigration applications.
Future EEA and Swiss citizens coming to work in the UK:
The Government may seek to obtain a special deal for the EEA post-Brexit, with certain elements of free movement alongside certain restrictions. This could take several years to reach an agreement.
Alternatively, EU nationals could be categorised in the same way as other migrants seeking to work in the UK. The current UK Points Based System (PBS) requirements mean workers are "sponsored" before they can apply to work or remain. UK employers would need to obtain a sponsor licence from UK Visas and Immigration, and each sponsored migrant attracts an Immigration skills charge, payable by employers from 6 April 2017.
There is likely to be a supply shortage of low skilled workers post-Brexit, which means the currently dormant Tier 3 of the PBS may be operated. If future Visas are subjected to an annual cap, highly skilled sectors such as Engineering and Technology are expected to suffer.
Employers may wish to carry out an audit of their employees' immigration statuses to determine who may be affected by the Brexit process. Those who continue to recruit employees from the EU must take care not to discriminate against applicants on the basis of their nationality – which will become increasingly tough as future employees' rights are uncertain.
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