Focus on residence and nationality post Brexit - what happens now and what to think about

Although the consequences of Brexit on free movement of workers in the EU is an unknown, there is a possibility that EU nationals living in the UK could have their right to live and work in the UK removed or restricted. Following the EU referendum result, we recommend that non-British citizens living in the UK consider applying for settlement and/or British nationality to secure their status in the UK.

Employers may wish to make their employees aware of this option and provide guidance or information on this possibility.

EU nationals

EU nationals should consider applying for a Permanent Residence Card if they have been in the UK exercising Treaty rights – ie, in employment, studying, self-employment, job-seeking or self-sufficient for five years or more. In most cases, once an EU national has held Permanent Residence for one year they will be eligible to apply for British nationality.

Holding a Permanent Residence Card is a requirement for EU nationals who have been in the UK for six years (or five if married to a British citizen) who wish to apply for British nationality. If married to a British citizen, they will be eligible to apply for British nationality as soon as Permanent Residence is acquired. Those who do not yet qualify for a Permanent Residence Card can apply for a Registration Certificate to evidence their existing right to live in the UK.

Applying for a Registration Certificate or Permanent Residence Card could offer some peace of mind to those EU nationals eligible to apply.

Longer term, it is possible that transitional arrangements will be put into place for EU citizens who do not qualify now, to allow them to make applications under the UK Immigration Rules. It remains to be seen what that permission will be and where the line will be drawn.

Given that the future remains uncertain, we recommend that applications to formalise and secure status in the UK are made as far as possible. Employers should ensure that all those who may be eligible to make an application do so at the earliest opportunity.

Non EU nationals

Although the vote for Brexit itself does not directly affect the rights of non-EEA nationals living and working in the UK, further restrictions on immigration may be introduced by the Government. The current anti-immigration climate makes this more likely.

It is sensible for those who qualify and wish to secure their status in the UK to apply for Indefinite Leave to Remain as soon as they can, and subsequently to secure British nationality.

Dual Citizenship

Applicants should seek advice on whether applying for British citizenship affects their existing citizenships before making an application. Austria, South Africa, the Netherlands, China, Japan, Norway and Germany, among others, have restrictions on dual citizenship.

British citizens

British citizens may wish to explore whether they have any entitlement to citizenship of another EU country in order to preserve their rights of freedom of movement within the EU. Such entitlements may arise as a result of descent, marriage or residence in another EU country.

Protecting business and avoiding race discrimination claims

In addition to protecting an organisation from the potential loss of talent, and securing staff by addressing concerns and outlining the above options, the current climate of uncertainty carries the risk that recruiting managers begin to favour those candidates whose right to work or immigration status (perhaps based on assumptions), are clearer. For example, preferring a candidate with a London accent over, say, one with a Spanish accent - who a manager assumes may not be a UK national.

This increases the risk of race discrimination claims, and businesses will be well advised to remind those responsible for recruiting of their obligations not to discriminate nor differentiate on such grounds. Organisations must ensure that they appoint the best candidate for the role without making assumptions of this nature or allowing any biases to inform the decision.

How Fox Williams can help

Fox Williams has a dedicated immigration and nationality team who will help you navigate what can be a complex and time consuming process. We can help with applications made inside the UK, helping clients to regularise their status and obtain British nationality, as well as plan how best to secure their status in the long term both within the UK and elsewhere in Europe. We know the right way to prepare the applications, what documents are required and who to submit them to.

In addition, we have excellent links with law firms in other key European jurisdictions, and are well placed to advise on obtaining European residence and nationality, perhaps based on family links or ancestry, assisting clients to obtain the right to live and work long term in Europe without the loss of British citizenship.

Fox Williams’ HR Law team has experts on diversity, inclusion and unconscious bias who advise on the legal risks around recruitment, provide training to recruitment managers and more broadly on race discrimination in the work place in light of the reported increase in racial incidents and harassment.

For more information on our next HRLaw Training workshop on diversity, inclusion and unconscious bias - please click here.

Contacts

Sacha Schoenfeld – Partner and Head of Immigration group
Helen Farr – Employment Law Partner

Audrey Williams – Employment Law partner
Adele Standard – Associate

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.