Immigration options for EU nationals living in the UK
After months of waiting, the speculation is now over. Britain has exited the European Union following last week’s referendum.
Amongst other vital issues, there are Hard-hitting concerns over immigration and it is natural to be concerned over the uncertainty that will ensue. Furthermore, we have seen the announcement of David Cameron’s resignation, who will stand down as Prime Minister at the Conservative Party Conference in October.
Whilst we do not know if Britain will have a second referendum, or if Brexit goes ahead, it is better to err on the side of caution. It is therefore time for EU nationals living and working in the UK and their UK based employers to review and understand options on regulating their stay in the UK in order to minimize the risk to the business by losing them.
Should Brexit go ahead, over the next few months’ leaders from Britain and Europe will make a start on negotiating the terms of the UK’s departure from the EU, however the changes and consequences make take a few years to become clear and take effect.
Article 50 of the Treaty on European Union outlines the process for member states to withdraw from the European Union. Members states are required by the Treaty to notify the EU of its withdrawal and then try to negotiate terms of their withdrawal agreement with the member state.
Brexit will affect the UK hugely, in particular the immigration and Britain’s economy. For those who are in the UK as EEA nationals and also for any Non-EU family members are aware of the uncertainty they face, given the UK have two years to reach agreements with member states of the European Union.
At present UK has approximately 3 million EU nationals living in the UK, these nationals will need to act fast to regulate their stay in the UK. However, this also impacts the 1.2 million Brits living in EU countries who will also need to work out what they need to do to remain in the EU country in which they reside.
What can you do to regulate your stay or continue employing EU workers in the UK?
For EU nationals who have been in the UK and exercising their Treaty rights for five years or more, should be able to apply for Permanent Residence. Previously EU nationals who had been in the UK exercising their Treaty rights in the UK automatically acquired Permanent Residence without the need to submit an application to the Home Office.
In November 2015 a change came in to effect that EU nationals would need to apply for Permanent Residence and it would not be automatically acquired, this rule also applied to anyone who had already spent more than 5 years in the UK exercising their Treaty rights.
How are Treaty Rights exercised in the UK?
There are a number of ways in which EU nationals can exercise their Treaty rights in the UK. Below are listed the ways in which this requirement can be met if you are?
- Employed in the UK in a full or part time capacity
- Seeking employment in the UK
- Self-employed in the UK
- Student in the UK and has comprehensive sickness insurance
- Self-sufficient person and has comprehensive sickness insurance
Provided you have been carrying out one or a combination of the above activities in the UK and are able to show evidence of this over the 5 years or more you should be able to apply for Permanent Residence.
How long does an application for Permanent Residence take to process?
These type of applications usually take between 4-6 months to process, however the Home Office expected to be inundated with applications with the run up to the referendum and anticipate processing times to be much longer as many EU nationals will want to secure their rights in the UK.
Given last week’s decision, apply now to avoid any sudden changes which might impact your rights in the UK and backlogs.
Can I remain a national of my country of origin?
In some cases, yes, you would need to check with the embassy of the country you hold a passport for, to confirm if they allow you to hold dual citizenship, they will then advise on the steps to be taken to ensure you citizenship for the EU country you hold a passport for is not affected.
Applying for Naturalisation after Permanent Residence
If you already possess a document certifying that you hold Permanent Residence in the UK, you can apply for Naturalisation to become British, 12 months after you have held Permanent Residence status. You would basically need to have been in the UK for 6 years, 5 years exercising your Treaty rights and one year hold Permanent Residence Status.
However, if you have been in the UK for 6 years or more and never applied for a document certifying that you are a Permanent Resident in the UK, your first step would be to obtain this document first. Due to the rule change EU residents who wish to apply for Naturalisation to become British must possess this document first. Once you have the had the application approved and are in receipt of the BRP card which confirms you hold Permanent Residence status in the UK, you can apply for Naturalisation straight away and do not have to wait 12 months.
Companies hiring EU nationals will need to ensure that their employees have the right to work for them and apply for the correct visas, once further announcements are made to ensure their EU employees can continue to work for them.
EU nationals who are in the UK and their family members must also regularise their status in the UK to avoid them having to leave to face breaching any immigration laws.
If you are eligible to apply for Permanent Residence or Naturalisation or employ someone who is, the team at Hudson McKenzie will advise on the list of documents which are tailored to your individual application which you will need to submit as part of your application, review to confirm all your documents are in order, draft the forms on your behalf and provide representations to the Home Office.
We appreciate it can be a herculean task for most UK employers to identify their EU employees who are eligible to apply. We also understand that this is a very worrying time for your staff who might be affected. We will try to eliminate the stress of a document intensive application by providing advice and support wherever possible.
The firm’s immigration partner Sarah Buttler said-
“Hudson McKenzie is proud to be a British, European and global firm who works internationally across borders every day of the week. We recognise the benefits of inward migration and the uncertainty of those affected.
We have a small budget for pro-bono work and have decided to use this over the coming weeks to work with those EU nationals who might find themselves in a worrying position in the UK. If we can help you or your staff by way of an in-house clinic for those affected to discuss their status, we would be glad to assist”.
To discuss further, call us on +44 (0)20 3318 5794 or email the firm’s Managing Partner Rahul Batra at firstname.lastname@example.org and we will be more than happy to speak with you and advise on your options.