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Immigration and Brexit – what care businesses can do to protect EU employees

HOW CAN CARE BUSINESSES PROTECT EU EMPLOYEES’ RIGHTS IN THE UK FOLLOWING BREXIT?

This article first appeared in The Care Home Environment, March 2017.

Ever since the Brexit vote on 23rd June 2016, immigration lawyers have been flooded with questions from both private clients living in the UK as EU nationals and also businesses who are currently employing EU nationals in the UK as to the on-going status of these individuals in the UK following Brexit.  So, care businesses employing EU nationals in the UK should consider taking urgent action to protect their position for the future.

Many care businesses with operations in the UK employ EU citizens across the range of their activities.  Since the result of the EU referendum was announced, many of those EU employees are now anxiously awaiting confirmation that their right to live and work in the UK will be preserved, when Britain finally withdraws from the EU.

The care industry is particularly affected by Brexit with large numbers of EU citizens employed in the sector.  So, if care businesses are faced with the prospect of losing a percentage of their workforce when Britain withdraws from the EU, replacing that workforce from within the UK becomes a reality. Many care businesses have looked to Europe to recruit staff who have been happy to move to the UK for the opportunities that the UK care industry has to offer, but arguably at a lower rate than full time UK workers have historically been willing (in sufficient numbers) to work for.  If those EU employees are no longer able to work in the UK, care operators will need to start thinking about how they square that financial circle.  It may well result in increased running costs, not to mention the potential HR issues, associated costs and disruption.

What next?

It appears that, until serious negotiations are at least started and possibly completed between the UK Government and the European Union, it will be impossible to say for certain what the position of an individual EU national living in the UK will be, once the UK finally leaves the European Union.  However, in a much-anticipated January 2017 speech Prime Minister Theresa May confirmed that the UK will leave the single market, but stated the government will aim for “the greatest possible access” to it post-Brexit. Similarly, the UK will leave the EU customs union and seek a new agreement.

In her speech she confirmed that the government will aim to restrict EU migration, but is still considering which immigration model to implement. The position of EU citizens currently living in the UK has not been decided, as there will need to be “reciprocity” with regards to safeguarding British expats living in other EU countries. When negotiations formally end, currently expected to be in 2019, Theresa May indicated that there will be a phased implementation period for the new immigration rules.

So, where does all of that leave care operators and managers?

Well, while nothing is yet clear cut, there are a number of points and actions that operators and managers should take note of and act on respectively.

The current position

At this stage, the following points are clear:

1. Any EU national currently living in the UK and exercising Treaty rights, e.g. by working, will have the right to remain in the UK exercising EU treaty rights until the UK leaves the European Union.

2. Any EU national wishing to come to the UK between now and the time the UK leaves the European Union will also have the right to reside in the UK and exercise Treaty rights.

However, there may well be a considerable difference in the long-term right to stay in the UK of EU nationals who can prove that they have resided in and exercised Treaty rights prior to the Brexit vote, although it is certainly possible, and there are strong legal arguments for this, that the critical cut-off point will not be the date of the Referendum vote, but could be the date of service of the Article 50 Notice by the British Government, or indeed possibly the date of  final departure from the European Union.

In any event, specialist immigration lawyers are advising their European clients and Company and Corporate clients employing EU nationals, to take the following steps to ensure that the status of their employee is protected as far as possible.

Two possibilities currently exist:-

1. Firstly, any EU national who has lived and exercised Treaty rights in the UK for at least 5 years is entitled to apply for what is called an EEA Permanent Residence Card. This is a card granting permanent residence rights and anyone granted such a card cannot be required to leave the UK, despite the UK leaving the EU, provided that the conditions of the card continue to be met.  Any individual who is in this position, or any Company employing such an individual, should be advised to apply for an EEA Permanent Residence Card as swiftly as possible.  The process costs £65 in Government fees, with £65 for each family member applying with the main applicant and is a lengthy process currently taking at least six months and probably longer in the future in view of the likely flood of applications.

2. For those individuals who have not completed five years of residence in the UK exercising Treaty rights, the best advice is to apply for an EEA Residence Card using the form EEA (QP). Any EU national who is currently exercising Treaty rights in the UK with their family is entitled to apply for such a card and again, should do so, in order to be able to produce a document proving right of residence in the UK.  However, whether or not these individuals will be entitled to obtain permanent residence rights in the UK if their five years’ residence expires after the UK leaves the EU, or indeed after service of the Article 50 notice, is both a matter of negotiation between the UK and the EU and also more than likely a matter for litigation in the Courts should the British Government take a hard line view on this.

However, it is most important to understand that, by simply living in the UK, an EU national is not exercising Treaty Rights.  Treaty Rights can be exercised by working, looking for work in some circumstances, studying, or showing self-sufficiency.  Conditions are attached to all these statuses.  In particular, to qualify for an EEA Permanent Residence card on the basis of working, it is normally necessary to prove that the EU national has worked for most of the five year period in the UK.  Short periods of unemployment are accepted, particularly where an employee has been a job seeker, but substantial gaps in employment are likely to lead to the refusal of an application or an EEA Permanent Residence card unless the employee is able to show that he/she has qualified under one of the other EU Treaty Rights, e.g. self-sufficiency, during any period when he/she was not employed.  Many applicants believe that the application for an EEA Permanent Residence card is a simple process, but this is not necessarily the case.

Many observers were amazed by the clear lack of preparation by the UK Government for a possible Brexit vote, despite the closeness of the Opinion Polls.  While all of that is history, uncertainty is still greatly affecting EU nationals working in the UK and so that both employers and employees are strongly advised to mitigate the risks of the current uncertain position by applying for the appropriate Residence Card as soon as possible. 

One can only hope that the British Government is in a position to clarify its thoughts as to the future rights of EU nationals in the UK as soon as possible.

Conclusion

While there is obviously still a great deal of doubt as to how the position on immigration and EU nationals will play out, there is a clear course of action that they, and their employers, can take. 

Our advice is that EU nationals working in the care sector (as well as members of their families) should be considering applying for either the EEA Residence Card or the EEA Permanent Residence Card to put them in the strongest position possible when Brexit becomes a reality. 

Care operators or managers employing EU nationals need to carefully consider their corporate position in regard to this issue and just how much of a hand that management takes in driving the immigration/residency agenda from their companies’ points of view.  This is highly likely to be dependent on the number of EU nationals employed and the likely impact of their departure on the business.

Author and contact:

If you require further information about this or would like a sounding board on what your care business’s EU employees can do to protect themselves after Brexit, please contact:

Charles Avens of Druces LLP’s Employment & Immigration team. 

c.avens@druces.com

 +44 (0)20 7216 5568

 

 

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Contact: Christopher Axford

Email: c.axford@druces.com

Tel: +44 (0)20 7216 5557

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