Since the outcome of the European Union Referendum, this issue has been largely at the top of the political agenda. There is indeed a lot of uncertainty as to how and when the Government will invoke Article 50 and the situation is not likely to be clarified, at least in the very short term.

For employers, the situation is very important because the present uncertainty includes:-

  1. The future position of EU nationals who are currently working for you in the UK.
  2. The extent to which EU nationals will be prevented from coming to the UK in order to work for your company.
  3. The position of British citizens who are living and working for your company but in another EU country.

It is important to remember that EU law will continue to apply to the UK as it does presently until the UK has formally exited the EU. This is not going to be a quick procedure because if and when Article 50 is triggered, it is quite possible that the UK will not formally leave the EU for a period of up to two years.

What is unclear at the present time is whether the UK Government will put into place transitional provisions for EU nationals who are currently working in the UK and for UK nationals who are working within the EU. Our advice is that EU nationals along with their family members should, if they are able to, make appropriate applications to the Home Office to obtain documentation confirming their status in the UK.

The options include:-

  1. If an EU national has been living and working in the UK lawfully for five years, then they may be able to apply for permanent residence.  In support of any permanent residence application, they will need to include complete evidence of their work history by way of documents confirming their employment such as P60’s, HMRC documentation and payslips etc.
  2. If the EU national has not been living and working in the UK lawfully for a period of five years, then they can consider applying for a registration certificate which will confirm their right to live    and work in the UK.  It may well be that they are only a short time away from applying for permanent residence in which case all relevant employment documentation should be retained so that the permanent residence (PR) application can be made at the earliest opportunity.
  3. If the EU national has been living and working in the UK for a period of six years, then as soon as they apply for and obtain PR, they will be able to immediately apply to naturalise as a British citizen and thus proceed to obtain a British passport.  This is obviously optional however.

It needs to be borne in mind however that there are a number of consequences flowing from the grant of PR and British citizenship which can include taxation implications or indeed leading to the loss of the EU nationals existing nationality.

For UK citizens working for you at the moment in another EU country, they would be well advised to consider whether they are eligible to obtain citizenship of that EU country possibly on account of their work, residence or family connections such as through marriage etc. This will then preserve their position in that EU country, once the UK formally leaves the EU, should you wish to continue employing them there.

Now is an opportune time for employers to check the immigration status of their employees across their entities both within the UK and within the EU and this will also help identify those employees who will very much be affected when the UK formally leaves the EU. Such employees can then be advised to make appropriate applications to the Home Office in order to confirm their status here.

For advice on anything contained in this article or any other issue related to Brexit or immigration generally, please get in touch with Sohan Sidhu by email at ss@gross.co.uk or by telephone on +44 (0)1284 763333.

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