For the 5th ScotlandIS Brexit Briefing, we are having a closer look at an issue that is of particular importance to our members, according to our Brexit survey from July 2016 – the future status and rights of EU nationals living and working in the UK. Many of Scotland’s digital technologies companies are employing staff from other EU countries, some businesses are owned by EU nationals and EU students studying at Scottish universities are an important source of talent for our industry. Scotland’s computer programming and consultancy businesses alone employed 4,000 non-UK EU nationals in 2015 which represents 11.5% of all employees in this sub-sector (source).
We spoke to one of our member companies, law firm Brodies LLP, to find out what changes EU nationals and their employers can expect and what they can do to prepare for and potentially mitigate these changes.
Current status protected until March 2019
First of all, it is important to note that legally nothing will change until at least March 2019 when the UK will actually leave the EU. Until then, the UK has to guarantee the freedom of movement for citizens of other EU countries. It is expected that the future status and rights of EU nationals in the UK and UK nationals in other EU countries will be agreed during the first few months of negotiations. David Davis said recently that “the government has made it very clear it wants to secure the rights of EU nationals living in Britain at the earliest chance in the negotiations. I am confident we can achieve very early agreement on these issues.” (source) The European Commission has made similar comments. However, it remains to be seen under which circumstances EU nationals will be allowed to remain in the UK post Brexit.
Practical steps employers can take
In the meantime, employers can take a number of actions to try and retain their staff from EU countries beyond Brexit. Lynne Marr, Partner at Brodies LLP and specialist in employment law, recommends to first of all get an overview of the immigration status of all employees. Which employees are EU nationals? How long have they been living and working in the UK? Do they already have the right to remain in the UK permanently or would they have to take additional steps to secure this right? No immigration procedures have been necessary for most EU nationals so far (other than the usual right to work checks carried out for all employees at the start of employment). Therefore, not all employers have this information to hand to assess the potential impact on their business if some or all of the EU nationals amongst their staff had to leave the country post-Brexit or if EU nationals become subject to additional immigration controls making it more difficult to employ them in the future.
Companies that employ several EU nationals, might also want to organise a session with an immigration law expert to provide their staff with objective information on their options going forward. This may help to reassure them. Lynne also points out that some employers are going further and offer staff access to an immigration expert for face to face sessions to discuss their specific circumstances or even financial support such as staff loans for employees who need to seek more comprehensive legal advice than can be covered in general sessions.
A lot depends on the final deal the UK and the EU reach but with these steps employers can help support those staff who are seeking to evidence their current rights to live and work in the UK as well as doing the best they can to protect their status for the time after Brexit.
Options for EU nationals to protect their rights
The options for EU nationals to protect their rights depend on how long they have been living in the UK:
- Less than 5 years continuously: Citizens of a European Economic Area (EEA) country or Switzerland can obtain an EEA registration certificate, if they are a “qualified person” which means that they are a worker, student, job-seeker, self-employed or self-sufficient in the UK. Lynne Marr advised that “although you do have to complete the relevant paperwork or apply online for the certificate it is beneficial to have because it offers proof about a person’s current status if freedom of movement is restricted in the future and it may help with further residency procedures.”
- 5 years continuous residency and more: EEA or Swiss citizens that have been in the UK as a “qualified person” for a five year period (most recent 5 years or before), automatically have permanent residence status. This status allows them to live in the UK indefinitely unless they go abroad for more than two years in a row or, for example commit a serious crime or pose a threat to national security. Lynne recommends applying for documentation certifying permanent residence to be able to confirm this status and prepare for any transitional arrangements that might be put in place after Brexit. Permanent residence documents are also required to apply for British citizenship together with 6 years of continuous residency as a “qualified person”. However, Lynne Marr from Brodies LLP advises: “This might not always be the best option for EEA nationals with non-EEA spouses as the UK Government does not treat naturalised individuals as exercising EU treaty rights including the right to be accompanied in the UK by non-EEA spouses”. Naturalising can have unintended consequences in these circumstances. There can also be tax and pensions implications of naturalising. Lynne recommends seeking specialist advice before applying for citizenship in those cases. Applicants should also check if their country of origin allows for dual nationality. If not, they might have to relinquish citizenship of their home country to become a British citizen.
More detailed information on eligibility and application processes is available here.
The future of immigration policy
The above is focused on non-UK EU nationals that are already in the UK but how will businesses in the digital technologies industry and beyond be able to recruit from abroad after Brexit? In its Brexit white paper, the UK Government announced that it “will create an immigration system that allows us to control numbers and encourage the brightest and the best to come to this country” (source) and plans to bring forward an Immigration Bill setting out plans for a new immigration system. Lynne Marr said: “Different options are being discussed. It is possible that there will be different immigration rules for EU nationals and non-EU nationals, the current system for non-EU nationals could be applied to EU nationals or a whole new system for EU and non-EU citizens could be designed.”
ScotlandIS is currently developing proposals on a future immigration system that would serve the needs of Scotland’s digital technologies industries and allow businesses to continue to thrive. Watch this space for further details and please get in touch if you have suggestions or want to tell us about the international talent needs of your business.
I would like to thank our member company Brodies LLP, especially Lynne Marr, Christine O’Neill and Martin Sloan, for their expert advice on this topic.
This briefing is an overview of specific issues in relation to Brexit only and does not constitute legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
If you have any comments or suggestions for other topics, please get in touch with me at email@example.com . For more specific questions on this topic, please contact Lynne Marr at firstname.lastname@example.org.
Svea Miesch, Research and Policy Manager