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In-house Division

Right to remain

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Over a year since the Brexit result, much uncertainty still hangs over the rights of EU lawyers to live and work in the UK. Joanna Hunt scrutinises the government’s recent paper on the future status of EU nationals, and its implications for anyone working in legal services - but is it good news?

Since the referendum result just over a year ago, there has been a growing unease among EU lawyers about their ability to live and work in the UK long-term. A recent survey showed that many are considering leaving the UK in the near future, and the Brexit result is clearly having an influence over their decision to leave.

There are concerns too that the result is impacting on the number of international students who are choosing to build their legal careers in this country, with some opting to qualify in other jurisdictions where the legal landscape is more certain.

It was therefore timely that, on 26 June 2017, the government released its long overdue policy paper setting out the plan for the future status of EU nationals and their family members after we have exited the EU. The paper goes some way to address the worries many EU lawyers have about their ability to work and practise in the UK post-Brexit. Many, though, are likely to feel short-changed, by the promise of an inferior status to what they currently enjoy and a failure to guarantee what rights they will have.  

The right to work 

The paper sets out the broad scheme for how EU lawyers already in the UK will be able to live and work in the country up to Brexit and beyond. In short, all EU nationals and their family members are going to be required to apply for indefinite leave to remain (ILR). This is the legal equivalent of permanent residence within the UK immigration system, and it will mean that they can live, work and enjoy the benefits of living in the UK indefinitely, provided they do not leave the UK for an extended period.

In order to apply for ILR, EU nationals will need to show they have resided in the UK for five years. A cut-off date will be implemented; EU nationals who arrive before this date and have not acquired five years of residency when we exit the EU will still be able to remain in the UK until they have clocked up the five years. EU nationals who arrive after the cut-off date will not automatically be able to settle in the UK and their future will depend on the rules in place after Brexit.

The situation will be eased for family members of EU nationals, as the cut-off date will not apply to them. They will be able to apply for settled status after five years, provided they arrive before we have exited the EU. If they arrive after this, they will have to use the provisions of the immigration rules for family members, and have to meet the income threshold, currently set at £18,600. Unhelpfully, the cut-off date is yet to be decided and is likely to be part of the Brexit negotiations.

Transitional arrangements

The government is keen to avoid a rush of applications once the system is in place. To ensure there is enough time for people to secure their documentation, there will be a period of ‘blanket residence permission’ starting as soon as the UK exits the EU. In essence, this is a transitional arrangement allowing EU nationals who already live here a period of time, likely to be two years, to acquire their status documents. EU nationals who arrive after the cut-off date will be entitled to reside here during the period of blanket residence. However, once this grace period is finished, their future status is uncertain, and will depend on the immigration rules and the whim of the government at the time.

Residency application

The residency application will be a new administrative procedure and separate to the current range of EEA applications, such as permanent residency or residence card applications. The policy paper is light on detail on what the scheme will entail and, more importantly, when it will be introduced. We have been told that it will be an online system, with limited documentation and involve applicants sending their passport away. Applicants will also have their fingerprints taken and there will be a ‘reasonable’ fee.

The system will apply to all EU nationals and their family members in the UK. The policy paper is clear that nationals of all EU countries will be treated alike and EU nationals who have already acquired permanent residence will still have to apply for this residence status. Irish nationals will continue to be able to live and work here without having to apply to regularise their status in the UK, thanks to their membership of the common travel area.

For a significant number of EU lawyers and their employers, it will be reassuring to know that they will be able to acquire a status post-Brexit that will enable them to stay permanently in the UK and, ultimately, apply for citizenship. But for EU lawyers and law students who have arrived after article 50 was triggered in March 2017, and those planning to relocate in the near future, the fact that the cut-off date remains unknown leaves them in limbo, unsure that they can stay in the UK long-term.

EU lawyers will also have to be made aware of the limitations to ILR status. This status is inferior to the rights they currently enjoy under EU law. For instance, it can lapse if an individual leaves the UK for two years or more. This is likely to impact on the ability of law firms and companies to maintain the global mobility of their workforce, and may dissuade some lawyers from taking long-term secondments abroad.

For EU nationals who have already acquired permanent residence and are eligible for citizenship, there is now added motivation to apply for naturalisation as soon as possible, as this would seem the only way they will avoid the requirement to apply for ILR once the system is up and running.

The right to practise 

As well as being able to work in the UK, EU lawyers also face the additional uncertainty relating to their ability to lawfully practise after we have exited the EU. Currently, EU law enables lawyers to practise freely across the EU. If there are any disruptions to this system, it could result in an exodus of foreign lawyers from our shores.

The government’s policy paper confirms that the UK will ‘seek to ensure’ that citizens with professional qualifications obtained in an EU country prior to the day the UK exits will still have these qualifications recognised. They will also ‘seek to ensure’ that anyone who has begun an associated process that has not concluded by exit day in March 2019 will be able to continue their studies until they qualify.

Reassuring as this may appear, the fact that lawyers and current law students have still not been given a guarantee that their ability to work and study will be maintained is disappointing. While this uncertainty may strengthen the UK’s hand in Brussels during the Brexit negotiations, it exacerbates the concerns of EU lawyers and the law firms and businesses that employ them. The vague promises in the policy paper could result in many lawyers being tempted with moves abroad or declining the opportunity to relocate to the UK knowing their ability to work is not yet secure.

Joanna Hunt is a senior associate in Employment, Reward and Immigration at Lewis Silkin.

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