In this article we consider the implications for European nationals and their family members already in the UK and for those considering moving to the UK.
What is clear in the short term is that the regulatory position will not change. Until such time as the UK formally leaves the European Union, it remains subject to EU laws. What is much harder to establish, is what will come next.
The picture of what the UK’s post-Brexit immigration policy will be is incredibly difficult to predict. There are a number of competing factors which must be considered, not least:
- The terms of any trade deal with the EU, for example, will the UK agree a Norwegian-model deal which necessitates retaining free movement provisions? Will the UK be unable to agree a trade deal and thus be free to impose restrictions on EEA nationals seeking to enter or remain in the UK.
- What did the leave camp offer as a post-Brexit solution? What traction will this have given that the Leave Camp was a cross-party coalition and not a government with a mandate to make changes to the UK’s laws? - Will the UK experience a shortage of lower skilled labour? If so, will this lead to the reopening of previously closed low skilled seasonal programmes, e.g. Seasonal Agricultural Workers Programme, or finally breath life into the yet unused Tier 3 of the Points Based System?
- Will UK immigration law as a whole be overhauled to reflect the new circumstances? The existing Points Based System governing skilled immigration was crafted at a time when the UK could count on a given level of unregulated migration from within the EEA.
Free movement could remain largely unaffected depending on the nature of the UK’s negotiated trade deal with the EU.
What is known is that the overwhelming majority of European nationals come to the UK to work (71%). Of the others, 16% come to study whilst 8% come for family reasons.
What has been said thus far?
“Any European Union national already lawfully resident in the UK would be automatically granted indefinite leave to remain and will be treated no less favourably than they are at present”.
On the face of it this is an incredibly generous position. It is far more generous than existing European law dictates. As the law presently stands, an EEA national must exercise Treaty rights in the UK for a continuous period of 5 years before they become eligible for permanent residence (the European equivalent of indefinite leave to remain).
By stating that any European lawfully in the UK will be given indefinite leave to remain, the Leave Camp suggested a policy which has a much broader church. A European national has an initial right of lawful residence in the UK for 3 months simply on presentation of their passport at a port of entry.
Thereafter, extended rights of residence are permissible and lawful if the European national:
- Takes self-employment;
- Studies (and holds health insurance); or
- Is economically self-sufficient (with health insurance).
The Leave Camp proposal does not thus require a European to have worked continuously in the UK for 5 years.
If we take the Leave Camp proposal at face value, I would advocate any European national in the UK for less than 5 years to apply for an EEA Residence Card. This confirms the lawful basis of your stay in the UK and can be acquired either by post (which can take up to 6 months) or via a Premium Service Centre same-day decision.
To remove any uncertainty over their future, we would also recommend that those European nationals and their partners presently eligible for permanent residence should apply for a document certifying permanent residence.
Looking at the position for European nationals and their families considering migrating to the UK the future is difficult to predict.
In the short term, and until an exit from the EU is negotiated, European nationals will continue to benefit from free movement rights in coming to the UK. One would presume that, once here lawfully, they would then benefit from the Leave Camp’s proposals permitting them to stay after the Brexit.
There is no reason to assume that admission requirements imposed on EU citizens after the UK has left the union will be the same as those that currently apply to non-EEA nationals. The existing Points Based System was designed to regulate non-EEA migration at a time when it was known that many vacancies that would not qualify for Tier 2 sponsored permission would be filled by European nationals.
Tier 2 General visas are available to workers in graduate-level (NQF level 6) jobs that pay a minimum of £20,800 per annum.
The majority of jobs in the UK labour market do not currently qualify for Tier 2 visas. Similarly, the majority of European nationals presently working in the UK would not qualify for a Tier 2 visa as they fall below the skills and/or salary threshold. As said above, It is very unlikely that any restrictions on EEA migration will affect those already in the UK but it will make it harder for lower skilled or lower paid Europeans to migrate to the UK. This is likely to impact UK employers most in the hospitality, manufacturing and agricultural sectors which are traditionally heavily reliant on the European workforce.
If you would like our help to apply for an EEA Family Permit, an EEA Registration Certificate, an EEA Residence Card, Permanent Residence or naturalisation, please contact us on +44(0)20 7038 3980, at firstname.lastname@example.org, or via our online contact form.