Immigration lawyer Tsige Berhanu examines the practical implications of changes in free movement policy
As the industry debates the implications of Britain leaving the EU, immigration lawyer Tsige Berhanu examines the human and practice implications of the recent government policy proposals on the future of EU citizens in the UK
Following on from the EU referendum, the architectural sector has identified a number of concerns for its practice, none more concerning than the future of its foreign employees. A year after the British public voted for the future of their country, uncertainty still surrounds the free movement of people. Many EEA nationals are without guarantees as to their continued residence rights in the UK. So, it should come as no surprise that a recent RIBA survey reported that around 40% of UK-based non-British, EU national architects are considering leaving the country.
The potential impact, then, is undeniable. Figures from the third quarter Labour Force Survey of 2016 suggest that 27% of architects were born outside the UK, with 17% being from the EU.
There have been widely supported petitions and campaigns urging the government to give clarity on the future of EEA national residents in the UK, including an open letter from some of the UK’s leading architects calling on Theresa May to give clarity on the future of EU national members.
At last, on 26 June, the government published a document outlining its proposed policy for ‘safeguarding’ the position of EU citizens living in the UK and UK citizens living in the EU. The policy is a proposal subject to negotiations with the other EU member states. It is therefore possible the final version may change significantly. It is also worth noting that until such time the EU exits the EU, EEA national residents in the UK will continue to enjoy the rights they have under EU treaties.
Summary of the UK government’s proposal
The proposed policy provides that once the UK leaves the EU, it will create new rights in UK law for qualifying citizens resident in the UK prior to the exit. All EU nationals, including those who already hold a permanent residence card will be required to apply for a status document. The government proposes to set up an application process before the UK leaves the EU. There will also be a grace period of up to two years from the exit date that would allow EEA nationals to apply for status documents. For those who already have obtained a permanent residence card, the government intends to introduce an application process for settled status that is as ‘streamlined’ as possible.
The changes are referenced to a specified date which is a date to be agreed with the EU and will be no earlier than 29 March 2017 and no later than the date the UK exits the EU.
The proposed policy further provides that:
- Those EEA nationals who have been resident in the UK before the specified date and have completed a period of five years of continuous residence in the UK will be eligible for settled status.
- Those EEA nationals who arrived and became resident before the specified date but have not accrued five years of continuous residence at the time the UK exits the EU, will be able to apply for temporary status in order to remain resident in the UK until they have accumulated five years to enable them apply for settled status.
- Those EEA nationals who arrived after the specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently. However settled status for this group is not guaranteed and the post-exit arrangements for this group have yet to be determined.
- Family dependants who join a qualifying EEA national in the UK before the UK’s exit will be able to apply for settled status after five years, irrespective of the specified date. However, those joining after the UK’s exit will be subject to the same very onerous rules as those joining British citizens or to the yet-to-be-determined post-exit immigration arrangements for EU citizens who arrive after the specified date.
Settled status is equivalent to ‘indefinite leave to remain’, pursuant to the Immigration Act of 1971, and means that a holder of that status will be free to reside in any capacity, to undertake any lawful activity, to access public funds and to apply for British citizenship.
The government’s proposal has been criticised as falling short of the EU’s expectations and as carrying a real risk of creating a second class of citizenship. The UK’s intention to give jurisdiction to the UK legal system instead of the Court of Justice of the European Union; the lack of guarantee that EEA nationals in the UK will maintain all EU rights in perpetuity as well as the need for all EU nationals to apply for ‘settled status’ are some of the points of criticism that will no doubt be the hot topics for negotiation.
What form the final provision of the policy will have is therefore something only time will reveal.
What can employers do to protect the rights of their workforce?
Given the continuing uncertainty above, there are a number of things that proactive practices can do in order to support their EEA national workforce and reduce any adverse impact on their businesses.
As a first step, employers need to identify who is affected. This should be a straightforward process and requires looking at each employee’s ‘right to work’ documents (passports or national ID cards). All UK employers are required to keep ‘right to work’ documentation for all their employees across the board. Employers who do not have a system for keeping these documents will need to review their processes in order to be compliant with UK Immigration law requirements.
Employers should then discuss with their EEA national workers the options that are available for them under the existing EEA regulations as well as the proposed policy. Some EEA nationals may want the security of applying for British citizenship. When considering options, the following should be noted:
- Those who have already accrued five years of residence in the UK and wish to acquire British citizenship may proceed to apply for a permanent residence card to enable them apply for British citizenship upon a cumulative residence period of six years. To apply for British citizenship an EU citizen must have obtained a permanent residence card or indefinite leave to remain.
- Those who have already accrued five years may still wish to apply for a permanent residence card under the EEA regulations. Irrespective of intention to apply for British citizenship, EEA nationals may see holding a permanent residence card as an advantage if the government, following the negotiations, drops the requirement to reapply for a “settled status” or in order to take advantage of the ‘streamlined’ application process for settled status if and when the application for that scheme is open.
- Those who arrived prior to the specified date but have not yet accrued five years of residence should keep evidence of their entry and residence in the UK to demonstrate their EU rights prior to the specified and exit dates.
Finally, employers should assess what further support they can offer. This could be in the form of financial assistance towards legal costs, help with documentation or consultation. The value of open discussions to reassure employees that their employers are there for them in as much as possible should never be underestimated.
Ultimately, the key is thinking ahead as much as possible and working quickly to ascertain employees’ positions. While concerns for the industry have been rife, the right preparation by employers, along with the chance to improve operations, can help Britain’s designers to lessen the upshot of Brexit and maintain a talented and diverse workforce.
Tsige Berhanu is an immigration lawyer at Keystone Law