Immigration: legal implications of Brexit for your business

Freedom of movement between EU Member States is a fundamental principle of EU law. Workers can move between Member States without restriction. This means that UK passport holders can work in other Member States without needing a visa or residence permit, and vice versa. For UK-based businesses, it is the position of EU nationals in the UK that is likely to be of most concern, although similar issues are likely to arise for EU businesses employing UK nationals.

The following are three key immigration-related issues which employers will need to consider with the UK leaving the EU:

• The UK and the EU may negotiate a special Agreement safeguarding the acquired rights of both resident UK/EU population respectively in the EU and the UK; but applying the full rigours of immigration rules after a Brexit. EU citizens (and family members) could then be compelled to either apply for Indefinite Leave to Remain in the UK, or obtain limited leave to remain in the UK.
• It is safe to assume EU citizens would be non-visa nationals; thus, able to visit the UK without a visa (subject to proving they are genuine visitors). However, for any stay beyond 6 months, for the purposes of employment, business, study or family, a UK visa/permit would be required, with the full rigours of UK immigration rules.
• Any UK citizen looking to stay in the EU for any longer period than 90 days, (for employment, business, study, and/or family based immigration) would be required to obtain a visa or a permit from the member state in question, with the potential for an “integration” test, requiring UK citizens to prove knowledge of the language of the host member state. UK citizens could not move at will from one member state to another, even after settlement in a member state.

Beyond this, Brexit raises a number of questions for businesses, such as:

• How will Brexit affect my current staff and ability to recruit? What proportion of existing staff might need visas and/or residence permits? Would they be required to leave the UK and re-apply?
• Will further tightening of UK immigration rules make it more difficult or costly to employ EU citizens?
• Might there emerge a two-tier Europe, with preference given towards nationals from (for example) Germany and France over countries such as Romania?
• Can I protect myself and my staff by securing permanent status and/or UK nationality now?

We will continue to advise as it becomes clearer what agreement the UK and EU are likely to reach regarding immigration and acquired rights.