A lot has happened in politics since the June 23rd Referendum, but there has been considerable inaction on the issue of EEA nationals living and working in the UK. Despite this, employers can be taking steps to increase the chances that employees who are EEA nationals remain entitled to live and work in the UK post-Brexit.
Do we know whether EEA nationals will be allowed to continue living and working in the UK?
There is still no government guidance on what will become of EEA nationals in the UK once the UK has left the EU, and how they can secure their status. The Government has made it clear that free movement of EEA citizens to the UK will end after Brexit. Even though many UK employers rely on EU workers, following the triggering of Article 50 the government is discouraging EEA nationals from making applications to evidence their status – this is likely to be due to being overburdened by an influx of EEA applications since the referendum vote.
What can employers to help employees who are EU nationals?
The first and most sensible step for employers to take now is to take account of the nationalities in their workforce. It is important for a business to assess which members of its workforce may be affected by Brexit, how this could affect the business and what options may be available to avoid, or at least mitigate, disruption.
The triggering of Article 50 does not immediately change the rights or status of EU nationals living in the UK – however, it has started the clock on when change will come about. Employers should take the opportunity now to encourage and/or support its EU national employees to make applications to evidence that they have a right of residence in the UK, which predates any cut-off dates imposed once the UK has actually exited the EU. In addition those who have non EU family members in the UK who are reliant on the status of their EEA family members should also make an application. The applications open to EEA nationals to make are as follows:
EEA Registration Certificate – for those who have lived in the UK for less than 5 years
EEA Nationals (and their non-EEA family members) who are in the UK exercising Treaty Rights (working, studying, self-employed, self-sufficient, jobseeking) are able to apply for an EEA Registration Certificate to evidence that they have a current right of residence in the UK.
Prior to Brexit, there seemed little use in applying for this document, as an EEA passport or ID card essentially achieved the same thing, and allowed EEA nationals to enter and remain in the UK. Since the referendum vote, however, this is a far more valuable document, as it is confirmation from the Home Office that an EEA national has a right of residence in the UK under the Immigration (European Economic Area) Regulations (“the Regulations”) – it’s important to obtain confirmation of before the UK exits the EU and a cut-off date is introduced to those who can continue to fall under the scope of the Regulations.
The EEA Registration Certificate application involves completing a lengthy application form and submitting evidence of exercising Treaty Rights in the UK. Applicants can also attend an appointment at their local authority to use the European Passport Return Service, which will allows them to retain their original passport or ID card once the authorities have taken and submitted a certified copy of the travel document.
EEA Permanent Residence Card – for those who have been in the UK for five years or more
EEA Nationals (and their non-EEA family members) who have been in the UK exercising Treaty Rights (working, studying, self-employed, self-sufficient, jobseeking) for at least five years will automatically acquire Permanent Residence in the UK. An EEA Permanent Residence Card is a document evidencing this automatic acquisition.
Although Permanent Residence is acquired automatically and a Permanent Residence Card is not currently required to maintain it, having a Home Office issued document which evidences this right does provide some level of security, and will ensure that as and when the rules change, EEA nationals are protected. Furthermore, for those EEA nationals wishing to apply for British nationality, being issued with an EEA Permanent Residence Card is a mandatory requirement.
The EEA Permanent Residence card application involves completing a lengthy application form and submitting evidence of exercising Treaty Rights in the UK over a five year period. You will also be required to evidence that you have remained resident in the UK since acquisition of Permanent Residence. The European Passport Return Service can also be used to ensure that you do not have to leave your passport with the Home Office for the several weeks/months that it may take the Home Office to process the application.
Application processing times have considerably increased since June and applicants are often looking at 4-6 months to receive a decision, and sometimes more.
We strongly recommend that applicants consult an immigration adviser before submitting an application to ensure they get it right the first time and avoid unnecessary delay in having to reapply.
How can FW help?
We would be pleased to talk to employers about this issue and help them to protect their workforce in readiness for Brexit. We can also assist employees to make applications. Please contact a member of Fox Williams’s Immigration team for more information.
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