What would the impact be on EU nationals employed in the UK, should the UK vote to leave the EU? Sikin Andela, partner at London-based solicitors Glovers, looks at the three most likely options for the UK’s departure from the EU
1. The UK becomes a member of the European Economic Area (“EEA”). It has been suggested that this option would produce a similar relationship as currently exists between Norway and the EU. Membership of the EEA does not prohibit the free movement of people and as such, the effect on EU nationals employed in the UK would be minimal. However, this option is thus far unpopular, as it would not improve the UK’s ability to control EU immigration and would reduce its power to influence other EU policies to which it would have to adhere..
2. The UK becomes a member of the European Free Trade Association (“EFTA”) and negotiates multiple bilateral agreements with individual EU member states; the so called “Swiss option”. This option is posed to be extremely time consuming with unknown outcomes; Switzerland has over 120 agreements which have been developed over many years. The effect on EU nationals employed in the UK is difficult to quantify but it is thought that if the UK cherry picks countries with which to negotiate favourable terms, it is likely to face penalties from the EU. Again, this option is not currently being touted as a likely outcome.
3. The UK enters into a Free Trade Agreement (“FTA”) with the EU, the terms of which would exempt the UK from the free movement of people. Countries such as Singapore and South Korea hold FTAs with the EU. What would then happen to the EU nationals currently living and working in the UK without UK citizenship? Some say that any FTA would take account of those currently in Britain and would simply impose restrictions on those wanting to start work in the UK after the “Brexit”. Others say that entering into an FTA would mean that the UK’s normal immigration laws would apply to all EU citizens currently working in the UK. As of November 2015, there are estimated to be 2.03 million EU nationals working in the UK, and of that number, 975,000 are from Eastern Europe. Should the latter possibility be imposed, EU nationals who have not qualified for permanent residence or for leave to remain could, in theory, be required to qualify under domestic law or face removal.
Commentators say however, that the attempted removal of those already exercising their Treaty rights in the UK would lead to various legal challenges and so it is likely that they will be allowed to remain whilst they continue to exercise such rights. What is clearer is that any EU citizens and their families, who wish to come to the UK in the future, would be subject to the full force of British immigration law.
Most admissions for work are now under Tier 2 of the Points-Based System. This requires an approved sponsor, a minimum salary and a job offer either in a shortage occupation or a post which has already been advertised to the domestic job market and failed to recruit. It is now almost impossible for an elderly parent or other dependent relative to enter the UK to live with a UK-settled sponsor and this would apply to EU citizens who wish to join their adult children or other family members in the UK. Children could still join both parents, subject to financial and accommodation criteria, but, where one parent lives outside the UK, it would no longer necessarily be possible for an EU citizen child to join the UK parent. EU spouses and partners would be required to establish the genuine nature of their relationship, their intention to live together and that the UK sponsor earns over £18,600 pa. It should be noted that almost half the UK population is unable to meet the income requirement.
Overall, it seems that should the UK leave the EU, the position of EU nationals currently working within the UK will be protected for as long as they continue to work. What remains less clear, is the ability of those EU citizens’ families’ to join them in the UK and the position of EU citizens who wish to come and start to work in the UK following any “Brexit”.
Employers looking to recruit employees may well struggle to continue to recruit EU nationals unless they meet the criteria set out above. Given that many casual dining outlets hire EU nationals, this could have a serious impact on many businesses.
