Reassure your EEA employees that it's not too bleak
Naomi Hanrahan-Soar, July 17, 2019
Although Brexit is still confusing there is much evidence that EEA nationals are welcome to stay in the UK
Relieving anxiety is a really lovely part of my job as a UK immigration lawyer right now. Many employers ask me to allay the fears of their EEA employees – people who are now very uncertain about their future in a country they have called home and presumed themselves safe to make a life in.
For decades a person’s European passport was enough to grant them entry to the UK without question. Provided they worked, were financially self-sufficient or studying they were free to call it home. We haven't yet Brexited but many people are already concerned that their ability to live in the UK is not so certain anymore and maybe they or their family members will be forced to leave or will not be able to come back in the future.
Thankfully, from a legal perspective, having to leave is very unlikely. EEA nationals who entered the UK prior to Brexit will be able to stay broadly on the same terms as they entered under, and to have their family members with them. The EU Settlement Scheme has been established to facilitate this. The system is quite straightforward for the relatively tech-savvy and is so far proving fast and efficient for applicants who are familiar with snazzy Android phone apps. The relief in the room upon explaining this is palpable.
The EU Settlement Scheme does not offer enough emotional comfort for many, however, about their ability to leave the UK and come back in the future, or for their sense of belonging in the UK. The government’s current plan, in both deal and no-deal scenarios, is that settled status can be lost after an absence from the UK of five years or more (four years for Swiss nationals and their family members). Only British nationality provides permanent assurance of the ability to return to the UK without any additional administrative or cost burden, and offers a means of continuing to be a fellow citizen once our common European citizenship is lost. It also carries an entitlement to vote in any further referendum the UK may have on EU membership.
These factors go a long way in explaining why approximately 110,000 EU nationals have applied for British nationality since the referendum, including 55,000 during the year ending 31 March 2019. This is a 35% increase on the previous year and continues a rising trend in applications that peaked in the lead-up to our original Brexit date of 29 March. With the political situation still so uncertain and a no-deal Brexit looking increasingly possible, the surge in nationality applications from EU citizens is likely to continue.
The strength of the need for a sense of security is clearly great – the naturalisation process isn't straightforward and is costly at nearly £1,400. Firstly, a person has to obtain documentation to show they hold permanent residence or indefinite leave status. This status must have been held for more than a year, unless they are married to a British national. They must also have lived in the UK for at least five years, or for three if they are married to a British national. There is an English language requirement to meet and they must sit the infamous Life in the UK test, which entails learning a bunch of largely obscure not entirely useful facts about British society. There is also a broad-ranging good character requirement, which can stop some people with criminal convictions, traffic offences and sometimes even too many parking tickets from being eligible for a period of time or in more serious cases, permanently. Then there is the lengthy form, pulling together dates for all trips outside of the UK for the qualifying period and waiting up to six months for their application to be processed.
Although becoming a British citizen is a path that many have already embarked upon, some EEA national employees and their family members are still considering their options, including whether to leave the UK. Since the referendum net migration figures for EU nationals have declined, not because of any legal changes but largely put down to people feeling less welcome in the UK, combined with the drop in the value of the pound against the euro. Some may not have applied for British nationality because it would mean they lose their existing nationality, the cost is too high or they are not currently eligible.
Businesses that are sensitive to these issues may be able to offer support and improve employee wellbeing and retention, for example by considering whether to financially support a British nationality or EU Settlement Scheme application, or by structuring assignments outside the UK so that the person’s immigration status here is not put in jeopardy. These small efforts may make a huge difference.
Naomi Hanrahan-Soar is managing associate at law firm Lewis Silkin