Following the referendum, there is still a great deal of uncertainty regarding immigration both from the perspective of British Citizens and EU workers currently living and working in the UK.
Initially it appeared the UK had 3 options, they were:-
To leave the EU and joint the EEA (European Economic Area)
Leave the EU and joint the EFTA )(European Free Trade Association)
Leave the EU and single market completely.
It seems to be common ground that in the referendum, the leave voters were voting for option 3, which would result in the most radical change in the immigration system in the UK. The rights of EU workers in the UK would cease, although it seems likely that there would be some way of securing rights for workers who had been exercising treaty rights in the UK for a period of time.
In reality, the practical implications of Brexit in terms of immigration remain unclear. Statistics show that approximately 6.6% of the UK workforce are EU citizens (about 3 million people), it is therefore important for employers and workers to be aware of the legal position which is likely to change and develop substantially over the coming months and years.
Employers need to ensure they protect their business in the light of these changes and also protect their workforce during the process to ensure their workers continue to have the right to work as significant penalties for illegal working have been recently introduced.
To avoid uncertainty, employers should encourage their workers who have lived and worked in the UK continuously for 5 years to apply for a permanent residence card. This can lead to British Citizenship if the worker so desires, subject to approval of the Home Office and is likely to afford more protection to the worker in the event of a change in rules.
Regarding workers whose employers require them to work in other EU countries, currently this is not a problem with the free movement of workers; however, if the UK withdraws completely, this will create an issue as workers would have to obtain a work permit in the relevant country prior to their posting.
An alternative is to obtain an EU Blue card which is an EU wide work permit allowing highly skilled workers from non-EU countries to live and work in participating EU member states. Conditions are attached to the acquisition of a Blue Card, such as the requirement for evidence of a contract of employment with a salary higher than at least 1.5 times the average gross salary for that particular Member State.
In the UK, the most worrying problem for EU workers will be those in the non skilled category who have not been in the UK long enough to acquire a permanent residence card. Retention of such workers is likely to prove difficult as the current points based system which applies to non EU workers does no accommodate low or unskilled workers. UK immigration law may have to be radically changed to accommodate this category of worker, unless provision is made during the withdrawal negotiations.
Legal advice for workers who want to secure their right to live and work in the UK therefore has to be to apply for a permanent residence card if the criteria of 5 years working and living in the UK are met.
For employers, ensure that your workers documents are regularly checked and that their right to work continues.
Contact Biscoes Immigration department for specialist advice on these interesting, fast moving and radical legal developments