Once the Brexit process begins, a throng of UK residents of EU nationalities may seek to confirm their right to stay, resulting in 140 years worth of visa applications in one year. Legal experts Claire D. Nilson and Alexander Glibbery explain how businesses can prepare for stricter immigration rules
An August 3rd report by Oxford University’s Migration Observatory indicates that, once the Brexit process begins, there could be a rush of 3.5 million EEA nationals seeking to secure residency rights in the United Kingdom.
This may force the UK to process the equivalent of 140 years of visa applications in one year.
What is the current law? How did they get to these numbers? What preparations can business make now amid growing concern of a potential tightening of immigration rules in the future?
Currently an EEA national who has lived in the United Kingdom for five years as a qualified person under EU Treaty Rights (worker, self-employed, self-sufficient, student or jobseeker) can apply for a document certifying permanent residence.
The application is not mandatory as under EU law the qualified person would hold this status automatically anyway having spent five years in a member state.
Once permanent residence status has been held for a period of 12 months it is then possible to apply to naturalise as a British citizen if the person chooses to do so and subsequently apply for a British passport.
In 2015 there were a total of 27,271 applications for documents certifying permanent residence pursuant to EU Treaty Rights received by the Home Office. Of these, 66 per cent were successful with 22 per cent of applications refused and 12 per cent returned for being invalid.
A significant number of the 3.5 million EEA nationals currently residing in the United Kingdom and wishing to remain will apply for documents certifying permanent residence prior to the UK leaving the EU.
The extrapolation used to generate headlines citing a 140-year backlog of applications is based on applying the multiple of the potential increase in application volume to the current average processing time for applications.
Under EU law member states must process such EU Treaty Rights applications within six months.
The Home Office regularly takes the full six months permitted to process EU Treaty Rights applications regardless of their complexity.
The UK will have two years to leave the EU once Article 50 of the Lisbon Treaty is triggered and will remain a member state throughout that time. Indications from the Prime Minister are that she does not intend to trigger Article 50 until 2017.
Until such point, the referendum result has no formal legal basis.
To fulfil its legal obligations under the EU Treaty during the two years, the government will undoubtedly have to increase the resources available to continue to meet the six-month processing time allowed for applications.
Whilst the processing time is unlikely to decrease, it should not increase beyond the current six months.
Employers seeking certainty now of the continued right to work in the UK for their EEA workforce, following Brexit, should be looking towards supporting the costs of applications for Permanent Residence for individuals eligible prior to the UK exiting the EU.
The application form is 85 pages long and currently many EEA nationals submit their own applications, prepared without the benefit of immigration counsel, and this accounts for the significant proportion of refusals and applications being returned for reasons of invalidity.
After the UK leaves the EU, a likely course of action will be for a transitional period whereby those EEA nationals residing in the UK on the basis of EU Treaty rights, whether by virtue of holding EU Treaty rights documentation or by having been eligible to apply as a qualified person whilst the UK was a member state, might be expected to apply under revised UK (rather than EU) Immigration Rules for formal residence documentation from the Home Office as proof of their right to continue to reside and work in the country.
At the end of the two-year period following the enactment of Article 50, if a points based System is applied to new applications by European nationals to enter the UK, employers would likely be looking at a process similar to that which governs the business immigration of non-EEA nationals whereby an employer must sponsor the applicant’s employment in a position that is at or above graduate level or in an area of recognised skills shortage.
Claire D. Nilson is an associate at Faegre Baker Daniels. She heads the Immigration and Global Mobility Team in the London office. Alexander Glibbery is a paralegal with the Immigration & Global Mobility Team in Faegre Baker Daniels’ London office.
