It is now nearly six months since the U.K. referendum voting for Britain to leave the EU. The U.K. government is still arguing that it should not have to ask the U.K. Parliament to trigger Article 50 of the Treaty of Lisbon to start the exit process. The Supreme Court will decide the point by January.
In the meantime, the Prime Minister has agreed to set out the framework for the exit negotiations after Christmas and the EU says it wants the exit negotiations completed by October 2018. In this environment it is unsurprising that we are starting to get a firmer idea of what the position for EU migrants is likely to be.
Freedom of movement not on the agenda
The PM is firmly of the view that the UK should not agree to the continued freedom of movement of workers after Brexit. If that position is maintained then by April 2019 it is quite likely that EU citizens will have to meet the same Rules as those from outside the EU. The U.K. government are still keen to get net immigration down to around the 100,000 per annum mark and this would be a way to help to achieve that.
Reciprocal arrangements for expatriates looking likely
However, that leaves the question of what will happen to the estimated 3,900,000 EU citizens who are already in the UK. It seems likely that they will be dealt with when UK citizens in Europe are considered and the EU and UK reach a reciprocal arrangement. On that basis we may see transitional arrangements which mean that they will be able to remain on the same terms that applied when they arrived.
Creating potential (low) skill shortages?
However, there is likely to be less good news for seasonal workers and those who do not fit within the current points based systems. The hospitality, agricultural and social care industries who rely on EU workers are likely to be hardest hit. Research shows that these migrant workers may be up 30% more productive than the settled work force. There are concerns that prices will rise or businesses will close if access to these migrant workers is curtailed. No doubt representations will be made to soften the impact but the government rhetoric concentrates on regaining control of the numbers of immigrants.
There may be a case to think that low skilled migrant workers may continue to be allowed in to the UK, especially because the U.K. Foreign Secretary seems to be making a more pro-immigrant case. As well as proposing an amnesty for illegal immigrants who have been in the UK for 10 years (something which seems unlikely in the current political environment) he has been discussing the issue with his European counterparts and they suggest that he is in favour of a lighter touch system separate from the points based system which would look at labour shortages rather than skill levels.
The status quo
The one thing we can be certain of is what the immigration rules currently say and they are likely to remain in their current form throughout Brexit negotiations. As such, we know EU citizens can be lawfully in the UK provided they are workers or jobseekers or students who are self-sufficient. If they have been in the UK meeting those requirements for 5 years they can qualify for permanent residence, and if they have permanent residence for a year they can apply for British Citizenship.
So what should EU citizens in the U.K. be doing now?
Historically, a lot of EU citizens in the U.K. have not felt the need to obtain documentation to confirm their right to be here. That is changing and it would be advisable for EU citizens who are in the UK to have proof that they meet the immigration rules. This is partly the case because there have been a number of recent law changes which mean that landlords, doctors and others have to check people are in the UK lawfully before they can assist them. There has been a big increase in the number of applications so while there were 37,616 outstanding EU applications in June 2015 that number had risen to 100,000 by July 2016. That surge is likely to have continued. However while decisions may take six months or more to be reached it makes sense for EU citizens to act now, protect their positions and apply for appropriate residence documents so they stand the best chance possible of taking advantage of any reciprocal agreements with the EU on existing expatriates.
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