This article was written by Cerys Williams, Counsel
While all of us may be pondering what the impact of Brexit will be on our jobs, our family and our children, there is one group for whom the question has a different and compelling dimension, namely, EU migrants. Individuals who have exercised their Treaty rights either to come to the UK to work from another member state or who have left the UK to settle abroad will be following developments with a close eye and perhaps a furrowed brow. The issue involves not only the right to reside and the right to work but a host of ancillary issues like access to healthcare and state benefits. The confirmation that Theresa May will be the UK’s next Prime Minister will give little cause for comfort, as in the face of fierce calls to confirm that EU nationals who are currently resident in the UK will be allowed to remain, she has resolutely refused to do so.
While other employment aspects of Brexit may take months or years to be clarified, there is much to commend early resolution of this issue. Not only is there the human dimension to consider, but these workers are vital to many businesses. The question mark over their long-term status will be unnecessarily adding to the long list of things that employers here, and in other EU countries, will be trying to understand in our new and uncertain world.
However, political opinion is divided on the point. Some believe that a unilateral declaration should be made by the UK now, to put minds at rest. Others, including Theresa May, take the cautious view that the status of EU migrant workers in the EU is a negotiating point and should not be conceded except in the context of mutual and reciprocal agreement with the other EU member states.
There is, of course, a legal context to this issue; there are some arguments to suggest that enforced repatriation would be unlawful under the Vienna Convention or the Human Rights Act. In any event, whatever the theoretical position, it seems unthinkable that the UK would enforce a policy of mass deportation in these circumstances, which would hardly set a constructive tone for the upcoming Brexit negotiations.
We believe that, ultimately, there are good reasons on both sides to take a liberal and generous approach and consider it is very likely that some form of mutual amnesty will be agreed. There will be room for negotiation over the precise details including, crucially, the cut-off date for eligibility, which the government will hope will not encourage additional migration. Nevertheless, we hope and anticipate that baseline assurances will be given sooner rather than later and, certainly, prior to the main thrust of the Brexit negotiations. Hopefully, confirmation of the identity of our next Prime Minister will facilitate this.
Irrespective of any amnesty or recognition of acquired rights, the existing immigration framework will offer an alternative basis for some workers to remain, either because they have been here for five years so are potentially eligible for indefinite leave to remain or because they qualify on another basis such as ancestry.
In the meantime, employers are well-advised to:
- Audit which roles are currently performed by EU migrants;
- Support those workers in exploring alternative bases for remaining in the UK, for example based on ancestry or rights derived from their length of stay already in the UK;
- Consider where there may be skills or resourcing shortages over the longer term as a result of any immigration changes, and how these might be met;
- Be wary of “jumping the gun” and creating discrimination risks by treating EU nationals less favourably than British nationals due to concerns about immigration (discussed in our other article).