Since the release of the results of the EU referendum on 24 June 2016, EU employees are now anxiously awaiting confirmation that their right to live and work in the UK will be preserved, when Britain finally withdraws from the EU.
This is drawn into sharp relief by a July 2016 Report from Social Market Foundation, an independent British public policy think-tank, that suggests that more than half a million of the 3.6 million EU residents currently living in the UK, may not have qualified for permanent residency by the time of Brexit.
Therefore, protecting EU employees’ rights after Brexit is now a number one business priority for the many UK industries, which rely heavily on workers and staff from Europe.
For these organisations, recruitment concerns are outweighed only by the more immediate fear of losing their existing staff, once Britain finally withdraws from the EU.
According to most business and immigration experts, any future agreement that is reached between the UK and the EU will almost certainly preserve the rights of EU citizens presently working in the UK and the rights of those UK citizens elsewhere in the EU.
The alternative would be a disaster for both the UK and the EU and both sides know this.
In reality, though, it will be some time before the Government makes any definite immigration policy announcements.
In the past, the UK has utilised a transitional Workers Registration Scheme (WRS), designed to restrict and monitor the impact of immigration from new EU countries; the scheme effectively closed in April 2011.
Many expect a similar WRS system to be adopted for European Economic Area (EEA) workers presently residing in the UK.
There are though some very practical steps that UK businesses can take, in order to try and protect EU employees’ rights after Brexit and ensure that their family members are registered as ‘Qualified persons’ in the UK.
Registering ‘Qualified persons’ and their families
Under existing EU policy, ‘Qualified persons’ from the EEA and their families are entitled to certain working-related rights and other entitlements in the UK.
A qualified person is defined as an EEA citizen in the UK who is either:
‘Qualified persons’ do not have to register in order to receive their EEA ‘free movement’ entitlements but they may register their rights if they choose to and obtain a registration certificate.
Registration has previously been utilised by those seeking to prove their right to work in UK, mainly for claiming benefits and other services.
UK companies are now making registration applications to ensure the rights of EU employees and their families are recognised after Brexit.
Immediate family members of ‘Qualified persons’ can also apply for registration. These include:
Extended family members include the following relatives of a ‘Qualified person’ or their spouse/civil partner:
For student ‘Qualified persons’, only spouses/civil partners and dependent children can be registered as immediate family. All other relatives must apply as extended family members.
Unmarried partners of a ‘Qualified person’ can also apply as extended family members if able to demonstrate that they are in a lasting relationship.
The Two routes:
Applications to register as a ‘Qualified Person’
Applications for registration as a ‘Qualified Person’ are made directly to the Home Office using Form EEA (QP). Supporting documents, biometric information and a fee of £65 must accompany the application.
Applying for permanent residence
As a further way of protecting EU employees’ rights after Brexit, any EEA citizen who has lived in the UK for five years as a qualified person has the right to make an application for permanent residence.
This status confirms that the holder has the continued right of permanent residence in the UK under the Immigration (European Economic Area) Regulations 2006 (‘the EEA Regulations’).
Eligible family members and extended family members who have lived in the UK with their qualified person family member for five continuous years also have a right to apply.
Family members who have switched to a ‘retained right of residence’ (available where a relationship with a qualified person ends in certain circumstances) who have stayed in the UK for a continuous period of five years or more also have the right to apply.
In some cases, permanent residence applications can be made even where the applicant has not lived in the UK for five years. This applies where an applicant has been living with an EEA qualified person but the qualified person ceases work because of death, retirement, permanent incapacity or because they have become self-employed in another EEA state but remain a UK resident.
As with qualified person registration, applications are made directly to the Home Office with supporting documents, biometric information and the prescribed fee of £65.
All applicants under the age of 16 must be accompanied by the application of a parent, guardian or person over the age of 18 with legal responsibility.
Seeking certainty after Brexit
Permanent residency is the best measure an EU employee can take to secure their future in the UK.
While it is unlikely a future immigration policy will extinguish the rights of existing EU workers in the UK, in the face of uncertainty, it is prudent for employers to take whatever steps they can to mitigate risk.
We are experienced advisers to both employers and individuals on immigration options. To discuss the steps your organisation can take to protect EU employees after Brexit or if you require further information about this, please contact Charles Avens of Druces LLP’s Employment & Immigration team.
This note is not intended as legal advice. It is guidance only and reflects the law as at 18 July 2016.
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