The general take on Brexit is that there is much uncertainty surrounding the outcome of any negotiations. Let’s remember that change is good, and along with uncertainty there is always possibility. In the modus operandi of the British populace: “Keep Calm and Carry On”, how can businesses calmly tackle this uncertainty, not only for their own operational purposes but also to ensure that their employees, both present and future, are reassured of their legal standing? How can individuals carry on and protect their rights to work, study or just reside in their adopted EU member state?
'"Companies are best advised to anticipate change and ensure they are in a position to identify possible issues that need to be addressed as they arise." Stefan Nerinckx, FieldFisher'
ReLocate does away with all the drama and takes a “stiff upper lip” look at Brexit. We’ve consulted leading immigration law firms Fieldfisher and Fragomen, who in preparing their own clients for change during and after Brexit negotiations, have shared a few practical steps with us to keep us on the straight and narrow.
Overview of Outcomes
Yes, uncertainty is set to reign until negotiations commence in early 2017. Considering that the European Treaty established a negotiation period of at least two years in case of an exit, it is unlikely that there will be any immediate changes in the near future.
These negotiations could have a wide range of outcomes:
• The Norwegian, Icelandic and Lichtenstein model: the UK would remain subject to the majority of EU legislation, however there would be no role played in the decision-making process and no right to veto, including no independence from EU legislation nor the European Court of Justice;
• the Swiss model: ability to develop mutual agreements with the EU;
• the Turkish model: remaining part of the Customs Union;
• the “sui generis” model*: a completely new approach to UK / EU relations;
• total withdrawal from the EU*: if this is to occur, there would be swift changes to UK legislation.
From an International Business Perspective – Fieldfisher
Companies are best advised to anticipate change and ensure they are in a position to identify possible issues that need to be addressed as they arise. In doing so they can reassure staff on all levels. So what could possibly change? Establishing which regulations may be the most heavily impacted can be difficult, Fieldfisher has broken down the main points to be addressed into three main areas to be assessed within internationally operating companies: social security/welfare, employment law and of course, immigration. Fieldfisher has highlighted the existing regulations that may be affected, and what the knock-on effects of these changes may be.
1. SOCIAL SECURITY / WELFARE
883/2004 and 987/2009: regulates the social security scheme applicable to internationally mobile workers
These regulations are likely to be repealed once the UK leaves the EU, and the mutual treaties previously established between countries will once again be activated.
• The original mutual treaties limit the determination of the social security/welfare scheme to be applied and benefits covered therein;
• they do not provide for any regulation on simultaneous employment (two or more social security/welfare schemes operating at the same time);
• they do not systematically provide for regulations on accumulation of social security/welfare benefits/entitlements;
• they do not systematically provide guaranteed rights in respect of health/sickness costs.
2. EMPLOYMENT LAW
593/2008: determines the law applicable to employment contracts in a cross-border situation
Employment contracts between EU and UK will no longer be viewed in the frame of the “free movement of workers” principle.
UK legislation will have to be rigorously applied in cases of EU staff employed in the UK being brought before a UK court with an extraneous element, and vice-versa. When UK employers employ staff on EU territory, they will have to rigorously apply the legislation of that EU state.
3. IMMIGRATION – from a business perspective
This is still a hot topic of speculation. The UK Government could implement a points system not unlike that of Australia, although there have been indications that this is not preferred by the May administration. The UK borders are unlikely to close completely, however the UK Government is expected to implement some forms of restriction before the “divorce date” to limit a massive influx of people.
The knock-on effects of changes to immigration between UK and the EU are wholly dependent on the outcome of the negotiations. If the right to free movement ceases to apply or is restricted, those businesses built on sourcing international talent will then have to look to the new immigration and employment rulings for guidance regarding any future employment. Attempts to limit net immigration to tens of thousands will then result in severe restrictions to the pool of potential employees in the UK.
Fieldfisher’s advice on handling these potential changes within businesses:
• “Nominate a person or team of people who are responsible for monitoring employment issues. Ensure all staff have a contact person to whom they can address questions or express concerns in all the countries in which the organisation operates. This will ensure that all staff, wherever located get the same consistent message which in turn will give reassurance that the organisation knows what it is doing and what needs to be done as we approach Brexit.”
• “Staff may feel unsettled and anxious about how restriction to free movement may affect their right to live and work in the UK or other EU member states. Given the fact some EU legislation will be repealed, international mobility policies may need to be assessed and adapted, and ensure specialist advice is utilised.”
• “Encourage workers to list their entitlements to pension and other social welfare benefits when starting to work outside the UK.”
“The criteria for nationality applications are not always more demanding than those for long-term or permanent residency, and nationality is the more secure option to guarantee residence rights in the long term.” – Jo Antoons, Fragomen
From an Individual’s Perspective – Fragomen
Companies and individuals are naturally concerned about what Brexit will mean for EU nationals living in the UK and for UK nationals who are residing in another EU country. While UK politicians figure out what approach they will propose for those affected, individuals are wondering what actions they can take now. Fragomen suggest three key points of consideration for UK citizens currently living, working or studying in an EU member state who wish to take measures to safeguard their mobility rights.
1. REGISTER YOUR RESIDENCE IN THE HOST COUNTRY
According to Fragomen the first action step is to register your residence if this was not already done. UK citizens without a residence document who have been residing for more than three months in an EU member state should be encouraged to contact the national authorities and obtain one. Not all EU countries impose registration regulations on EU nationals, and in this case obtaining an official residence document before a divorce date is the safest way to avoid grey areas and maintain your right to reside in the EU even after a formal separation.
2. APPLY FOR PERMANENT RESIDENCE
Permanent residence rights and regulations vary from EU state to EU state. Some require five years of legal residence, some (including Belgium) request only three years when specific conditions are met. Fragomen suggest this action step with two reasons in mind:
• This confirms that you fulfill the requirements for the right to permanent residence, useful in cases of long absences from the EU member state where you currently reside;
• this maintains as many other rights as possible after Brexit. British EU permanent residence holders may have their status automatically transformed to that of non-EU nationals, whereby they are granted long-term residence for the whole of the EU or just the country where they currently reside.
EU or national long-term residence does not boast the same breadth of rights as EU permanent residence, however it does guarantee the right to continue residing in the host member state.
3. APPLY FOR NATIONALITY – but only if it is the right option for you
Obtaining the nationality of the EU country where you have been residing may appear to be the obvious option, however, before taking on an additional nationality, ensure that you’ve considered what is involved in the application process:
• Is dual citizenship allowed in your host country?
• What knock-on effects may a change in nationality have on your taxation status?
• Would this lead to a loss of rights? For example, some EU states grant less generous family reunification rights to citizens as opposed to those granted by EU free movement legislation.
That said, criteria for nationality applications are not always more demanding than those for long-term or permanent residency, and nationality is the more secure option to guarantee residence rights in the long term. Nationality can only be revoked in exceptional circumstances, while residency can be lost after two consecutive years of absence from the host country.
It is essential for businesses to maintain their own sense of structure and identity in this time of uncertainty. When approaching Brexit from an individual’s perspective, each unique personal situation must also be taken into consideration before making a decision. If we are able to maintain a sense of order, promote clarity and adaptability within organisations and keep open channels of communication we will ensure the best outcomes are achieved and business operations and lives carry on as calmly as possible.
With thanks to Stefan Nerinckx of Fieldfisher and Jo Antoons of Fragomen.
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