Despite the scaremongering in the press about EEA and Swiss nationals and their families having to leave the UK as a result of Brexit, their rights to reside and work in the UK currently remain unchanged. That said, free movement of EEA and Swiss nationals in the UK will be a key issue in Brexit negotiations and nobody knows what will happen in 2019 when the UK is expected to leave Europe. This has left EEA and Swiss nationals worried about their future and employers worried about the stability and productivity of their workforce.
What rights do EEA and Swiss nationals currently have?
EEA and Swiss nationals can currently come to the UK to work, study or be self-sufficient, without any registration requirements. After continuously exercising these “Treaty Rights” for five years, they are automatically considered as ‘permanently resident’ in the UK. This is a right under UK legislation and is only lost if the person leaves the UK for a period of more than two years. As permanent residence is an automatic right, the Home Office does not take any active steps to confirm this unless such a person makes an application for a certificate.
Those who have been permanently resident for a period of at least 12 months are eligible to apply for naturalisation as a British citizen and a British passport. This means that EEA and Swiss nationals can apply to naturalise as a British citizen after six years in the UK.
From a legal point of view, the above has not changed since Article 50 was triggered on 29 March 2017 and this should remain the same until the UK completes the Brexit process. Given that the right of permanent residence is a right under UK legislation, EEA and Swiss nationals who are permanently resident will retain this right unless the UK repeals existing legislation, which many consider to be unlikely.
However, it is clearly difficult to say whether limits may be imposed. Also, those who cannot easily evidence their UK immigration status may find it difficult to travel, work or settle in the UK after Brexit.
For these reasons, EEA and Swiss nationals should consider what they and their families can do now, as a waiting-and-seeing could ultimately result in lost opportunities.
What can EEA and Swiss nationals do now?
Those who have arrived within the last five years should consider obtaining a Registration Certificate. This will make it easier to prove their status in the UK and could have more importance in the event of any transitional measures being put in place. They should also ensure that they keep sufficient evidence of exercising Treaty Rights until they are eligible for permanent resident status.
Those who have been in the UK exercising their Treaty Rights for five years or more should consider obtaining a Permanent Residence certificate to evidence their status as a permanent resident.
If you can't beat them, join them
Finally, those who are permanently resident may wish to consider naturalisation as a British citizen.
In broad terms, applicants need to show that they have spent around two-thirds of each year in the UK over a five year period, with the last 12 months of this period being free from immigration restrictions (i.e. having obtained permanent residence). Therefore, this should be available to those who have been in the UK for six years or more.
There could be disadvantages to naturalisation, such as losing another citizenship if there are limits to multiple nationalities in their home country, or influencing UK domicile status.
How can Burges Salmon help?
The current concerns that many EEA and Swiss national have about their future in the UK is impacting on the stability, productivity and morale of staff of UK businesses. Many employers want to help their EEA and Swiss staff understand the rights that they and their families have to remain in the UK and the steps that they can take now to protect their positions.
Our three step Brexit Immigration Service, which has already been delivered to over 200 individuals to date, is a programme which provides clear face-to-face presentations and detailed notes to your EEA and Swiss employees in order to support them and explain the steps they can take to put themselves and their families in the best position to secure permission to stay in the UK.
Our expert immigration and tax-planning teams also provide bespoke advice to key individuals or business owners on how to establish and protect their UK immigration position.
For more information on our Brexit Immigration Service or our other immigration services, please get in touch with Huw Cooke.