May to announce restrictions on residency rights of new EU arrivals

27 Feb 17

UNITED KINGDOM

IMPACT – HIGH

What is the change? Prime Minister Theresa May is reportedly preparing to formally announce limitations on the rights of new EU arrivals in tandem with her announcement triggering Article 50 exit procedures next month. As of that date – anticipated to be March 15 – new EU/EEA arrivals to the U.K. should not have an expectation of permanent residence after five years.

What does the change mean? While EU/EEA nationals arriving after any cutoff date may continue to exercise free movement and work in the U.K. without specific work permission in the short term, they are on notice that they may not qualify for permanent residency post-Brexit and will likely need additional work permission or registration after the U.K. formally leaves the EU in 2019.

  • Implementation time frame: Ongoing. May is currently slated to trigger Article 50 on March 15, which would serve as the same date as the “cutoff” date after which new EEA nationals would have a limited expectation of permanent residency.
  • Visas/permits affected: EU freedom of movement; U.K. permanent residency.
  • Who is affected: EU/EEA nationals arriving in the U.K. after the cutoff date.
  • Business impact: Businesses sending EEA workers to the U.K. after the cutoff date should anticipate applying for work permits for those individuals.
  • Next steps: Companies should assess their existing EEA workforce in the U.K. for permanent residency eligibility and, in appropriate cases, take steps toward applying for registration certificates. BAL can assist in these processes.

Background: May is apparently setting an immediate cutoff date simultaneous to the triggering of Article 50 in order to avoid an influx of migrants from the EU. The reports come after Home Secretary Amber Rudd confirmed in a televised interview that the U.K. “will be ending freedom of movement as we know it,” thus, any new EEA migrant prior to Brexit must expect to transition to a work permit. The Home Office has confirmed that all options are on the table for a post-Brexit national immigration scheme, which will either apply a single system to all foreign nationals or a dual system that treats EEA nationals as preferential to non-European migrants.

It is expected that EEA nationals already living in the U.K. as of any cutoff should continue to be able to work and be granted permanent residency based on meeting the five-year residency as a “qualified person” requirement. However, Rudd also reiterated that while May wants to guarantee the status of EEA nationals already in the U.K. “as soon as possible,” she will not do so until U.K. nationals receive reciprocal guarantees of their status in EU countries.

BAL Analysis: The imposition of a cutoff date is legally challengeable (as it effectively thwarts EU law which remains in force until after Brexit) but May is likely relying on the EU being unwilling or unable to enforce this politically. Companies should be tracking their European workforce to plan for Brexit and its impact on EEA nationals’ continued rights to live and work in the U.K. While European nationals currently working in the U.K. should be able to maintain the right to stay in the U.K., individuals with breaks in their continuous stay in the U.K. or who spent periods of time as students, self-employed or self-sufficient and without comprehensive sickness insurance remain at risk of being ineligible for permanent residency.

BAL is hosting a webinar March 23 on “Making Sense of Brexit and Tier 2 Skilled Worker Reforms for U.K. Employers.” Registration and details are available here.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@balglobal.com.

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