This material was prepared prior to the UK vote on 23 June 2016.
A “leave” vote on 23 June 2016 could have significant impact on employee and individual mobility, immigration, and UK citizenship status.
Considering the charged political atmosphere around immigration issues and EU free movement that already exists in a “pre-Brexit” European Union, these are likely to be the most politically fraught areas of UK Government policymaking in the event of a Brexit. One of the founding principles of the EU is freedom of movement, yet even with a “remain” result of the Brexit vote, much is likely to change.
Many companies have questions about what Brexit will mean for their workforce and the consequences that a potential exit would have on the status of EU nationals in the United Kingdom. However, Brexit still largely lacks definition, and in the event of a “leave” vote, little will happen overnight.
A Brexit would give the UK Government the freedom to further limit immigration—from both inside and outside the European Economic Area. Being a member of the EU affords nationals of an EU country to move, live, and work from one member state to another. A Brexit could potentially restrict employee mobility and could lead to discrimination risks for employers, who may be reluctant to go through a burdensome visa process to recruit EU nationals. From analysis undertaken by the UK Government, the majority of recently arrived EU citizens would not qualify for sponsorship under our Tier 2 (work authorisation) programme. It is believed by some academics that a Norwegian or Swiss model of free movement (such as an Association Agreement) is likely, but in light of the numbers and overall impact, there is unlikely to be a complete end to free movement.
The UK’s Office for National Statistics (ONS) has found that non-EU citizens continue to make up the main body of incoming migrant numbers, despite an increase in EU2 nationals (Bulgarian and Romanian) coming to the UK for work, rising 33% up to a total of 45,000. The ONS found that 290,000 people migrated to the UK for work purposes during the year ending September 2015. This is a 9% increase compared to the previous year’s figure of 265,000. At 92,062, the number of successful Tier 2 skilled work visa applications rose by 4% and contributed towards a 2% increase in the total number of work visas granted. Indian nationals accounted for 57% of those skilled visa grants, and 11% came from US nationals.
A post-Brexit EU could still permit free movement, albeit with additional immigration and border control policies. Individuals who previously came to the UK without being required to obtain visas could have additional requirements imposed upon them, either before travel or at the border.
It is not clear whether EU nationals already living in the UK would be permitted to stay to obtain British citizenship. Under European Regulations, EU nationals who have lived in the UK for at least five years and who have during that time been exercising their Treaty Rights (e.g., working, self-employed, or a student) automatically have permanent residence status conferred upon them. Individuals must hold permanent residence status for a further year before they can go on to apply to become a British citizen. These rules also apply to family members of EU nationals. The provisions regarding an application for British citizenship as an EU citizen were recently amended to introduce the requirement for the applicant to first apply for a permanent residence document before being able to make an application for British nationality.
The future, of course, remains to be seen. However, those EU nationals currently eligible for permanent residence and subsequent British citizenship may wish to consider cementing that status ahead of the vote.
Morgan Lewis has set up a dedicated Brexit Resource Center to provide up-to-date news and industry contacts to answer any questions you may have about the implications for you or your business in the event of a Brexit.
For more than three decades, Morgan Lewis has represented companies and institutions doing business in the United Kingdom and globally. Our Brexit team of lawyers have been advising clients on a variety of legal issues in the run up to the decision and are assessing the complex short- and long-term implications of the June 23 vote. Our Brexit Resource Centre will continue to provide guidance on the legal and business implications of the United Kingdom’s decision to leave the union. To view this alert and others, and to gain immediate access to our most recent guidance on Brexit, please visit the Brexit Resource Centre. In addition, please feel free to speak to your usual contact at Morgan Lewis or to contact any one of the Brexit Team via Brexit@morganlewis.com.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the Brexit Team via Brexit@morganlewis.com.