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Brexit: What does the future hold for European migration?

The impact of the referendum on 23 June 2016 on the UK’s future domestic life remains to be determined, but one central area of concern and uncertainty is the issue of intra European migration. In particular, what changes, if any, there will be in relation to European Union (EU) citizens’ (and any non European family members’) right to work, study and live in the UK and the reciprocal arrangements for UK nationals living and working in the EU.

As a result of these concerns being widely voiced the Cabinet Office, Home Office and Foreign & Commonwealth Office have published a statement on the status of EU nationals in the UK:

https://www.gov.uk/government/news/statement-the-status-of-eu-nationals-in-the-uk

This statement can be distilled into two words. “No change”.

Until Article 50 is triggered and negotiations then concluded, the existing rights of all EU citizens (including UK nationals living and working in Europe) will continue. The government has also given further comfort by stating:

“When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected.”

Whilst it is impossible to predict how things might ultimately resolve themselves, we provide some further thoughts with regard to the position pre and post exit negotiations being concluded.

The short term

For the short term, probably for at least the next two years, there will be no change. As confirmed in the government statement, EU citizens remain entitled to work in the UK. They will also continue to have various EU derived rights, so for example the non-EU spouse of an EU citizen working in the UK is entitled to apply for a family permit /visa.

Permanent residency in the UK will also continue to be secured after a period of five years continuous stay whist exercising “treaty rights”, with a further option of applying for British citizenship after six years.

Looking ahead

Most rational commentators have suggested, whatever the outcome of the negotiations with the EU, that existing migrants (ie. those individuals already in the UK) will or should be permitted to stay in any event. Clearly it would be exceptionally controversial and potentially detrimental to the economy to try and repatriate large numbers of existing migrants.

It would also, no doubt, have the obvious risk of reciprocal repatriation of UK nationals presently living and working in the EU.

Some commentators have argued that the UK should seek to join the European Free Trade Area (EEA) or reach some equivalent arrangement with the EU. This would permit the free movement of workers within the EEA (including EU nationals). Any such arrangement would protect both existing and future EU migrants.

A further suggestion is that a modified version of this model could be adopted to give the UK more discretion to pause/stop new immigration if net levels became too high and/or more scope to deport/exclude specific individuals. However this would require all of the other members to agree, which may obviously prove problematic.

The Australian system

Other commentators have argued for an Australian style points based system. The UK already adopts such a model for non-EEA citizens. However, this involves quite a bureaucratic and onerous process including an obligation on the employer to register with the Home Office as a sponsor and various ongoing reporting commitments. There are then numerous conditions that the migrant must satisfy including language requirements, minimum salary etc.

Currently the model only accepts applicants for ‘degree level or higher’ jobs (known as ‘Tier 2′). Whilst there is a process to apply for lower level roles (‘Tier 3′) this visa category is currently closed; realistically the existing points based system would prove overly costly and bureaucratic to deal with any large scale ‘Tier 3′ level migration.

Perhaps a possible compromise approach may be to adopt a form of the ‘card based’ system, based on the rules adopted for new entry members of the EU, where there is a transitional period before their nationals qualify for full rights to freedom of movement.

From a separate UK perspective, there has been a flurry of interest by UK nationals to secure their own continuing personal access to free movement rights; one particular area of interest being the increased number of applications for an Irish passport. This can be secured if the applicant has one Irish parent or grandparent and, most attractively, does not involve giving up any existing British citizenship or passport.

It will be interesting to see which model is negotiated upon and what effect this will ultimately have on the present status quo. Minister James Brokenshire has disclosed that a Home Office “international immigration group” has already started work on mapping out the options for a post-Brexit immigration system, that is feeding into the Cabinet Office’s central co-ordination Brexit unit.

Certainly as home secretary and now in her new role as Prime Minister, Theresa May has made clear that her commitment to full border controls for the UK is a priority.

Blog posted 15 July 2016

Other blogs of interest:

Immigration Act 2016: Illegal working offences in force from 12 July 

Brexit: The employment law implications

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further