For decades, UK schools have been used to a clear distinction between EEA nationals (ie nationals of EU member states, Norway, Iceland, Liechtenstein and Switzerland) and non-EEA nationals when it comes to recruitment of both staff and pupils. EEA nationals have been in a privileged position, able to come and work or study in the UK without any need for a visa. Not only that, they have been able to bring their families with them, with no need to satisfy any financial maintenance requirements.
However, as we all know, the UK voted to leave the EU in the referendum on 23 June 2016 and the UK must leave the EU by 29 March 2019. This will clearly have implications for schools, both in respect of their ability to recruit EEA nationals as staff and their ability to attract students from EEA countries. Here, we try to assess what those implications might be.
No change as yet
It is important to stress at the outset that there has as yet been no change to the status of any EEA nationals in the UK. Individuals are free to apply for EU Registration Cards/Certificates evidencing their stay in the UK as well as for EEA Permanent Residency, allowing the indefinite right to live and work in the UK.
After the UK Exits the EU
Long term, the UK has already made it clear that it intends to make changes to free movement after the UK has left the EU. In June this year, the Government published its proposals for the treatment of EU citizens who are already in the UK before Brexit. It intends to downgrade the rights of EEA nationals who are already here so that they will be given leave to remain under UK law rather than being allowed to exercise free movement rights; however it said nothing about those who arrive after we leave.
Different rules depending on date of arrival?
The Government intends to adopt a two-stage approach for EEA nationals in the future: Those who have established themselves in the UK before an as yet unspecified date (“the cut-off date”: to be no earlier than 29 March 2017 and no later than 29 March 2019) are likely to be allowed to stay here. Those who arrive after this date will be subject to different rules, and there is a real possibility that they will be subject to the same Immigration Rules as all other non-EEA nationals. However, it should be noted that the European Parliament’s chief Brexit negotiator has already said that the Parliament will veto the UK’s proposals in their current form. The EU, for its part, wants all EU nationals in the UK on the date of departure to retain all of their free movement rights in perpetuity.
What does this mean for schools?
Firstly, as already stressed, there has been no change in the current position of EEA nationals who are already in the UK or who are just arriving here. This will not necessarily continue to be the case after we leave the EU. The Government has proposed that those who already have permanent residence will be able to apply for indefinite leave to remain. It is harder to predict what the status will be of those EEA migrants who are already here but haven't yet acquired permanent residence.
Currently, EEA nationals exercising their free movement rights as workers, self-employed people, students or self-sufficient persons automatically obtain a right of permanent residence in the UK after five continuous years of exercising those rights, as do their dependants. School employees who have worked here for five continuous years would undoubtedly qualify for permanent residence, along with their families. Some pupils may also qualify for permanent residence in this way, e.g. dependants of EEA nationals exercising their free movement rights. In addition, boarding school pupils may be able to qualify on the basis of having been students for five continuous years, provided they have held comprehensive sickness insurance throughout.
The Government intends that all those who have permanent residence by the cut-off date will be able to apply for indefinite leave to remain. There is currently no need to obtain documentation to prove permanent residence. However, the UK proposes that after 29 March 2019, all EEA nationals in the UK will be required to obtain UK residence permits during a 2 year grace period, even if they already hold a permanent residence card. They will also not be required to produce evidence of sickness insurance. It may be possible to apply for these cards voluntarily as early as 2018. This proposal at least means that anyone who has been in the UK for five years or more by the time the UK leaves the EU should be able to remain here permanently afterwards, albeit with reduced rights (such as no longer being able to automatically bring family members to the UK).
EEA nationals who have been here for less than five years
Staff and pupils who have already been here for more than three years may yet be able to acquire permanent residence by passing the five year threshold before the UK leaves the EU. However, the situation is less clear for people who have been here for a shorter period of time.
The Government intends that anyone who was already in the UK on the cut-off date (unhelpfully as yet unspecified) will be allowed to stay here long enough to accrue the five years’ residence which will allow them to qualify for indefinite leave to remain. Those who arrive after the cut-off date but before withdrawal will be able to exercise free movement rights up until the day of departure but will then have to apply for limited leave to remain under whatever laws then apply to them.
Currently EEA nationals exercising free movement rights are entitled to a Registration Certificate, which shows that they are present in the UK exercising such rights. However, Registration Certificates, like permanent residence cards, will not be recognised after departure under the proposals. Nevertheless, one advantage of applying for a certificate now is that there will then be a record at the Home Office of that individual’s presence in the UK, which may reduce the risk of disputes later on.
After departure from the EU
The worst case scenario from the point of view of staff and pupils is that after Brexit they become subject to general immigration law. This would mean that EEA staff would have to be recruited via the Tier 2 visa route for skilled workers. Schools that do not already have a valid Tier 2 sponsorship licence would be required to obtain one before they could recruit. Tier 2 visa applicants need to have an 'appropriate' salary, satisfy an English language requirement, and have a certain amount of savings.
Unless a pupil is a dependant of parents who already have a visa, then he/she would require a Tier 4 (Child) visa. Schools that wish to offer places to EEA pupils would require a Tier 4 Certificate of Sponsorship in order to do so. The pupil would have to show they have enough money to cover course fees and living costs.
It must be stressed that this will only be the case if EEA migrants become subject to the non-EEA Immigration Rules. However, this is a real possibility as the Government has specifically left this open as an option in its position paper. It would certainly be much more difficult for an employee or pupil to satisfy these requirements than to exercise free movement rights.
There remains much uncertainty about what the position of EEA nationals in the UK will be after we leave the EU. In the meantime, it would be unlawful to discriminate against EEA nationals on the basis that the UK is leaving the EU. Until the issue of EEA nationals' status after departure is resolved, staff and pupils would be best advised to ensure that they keep records of their residence, employment and studies here as they will almost certainly need to document their entire qualifying period in the UK when applying for status under the new regime to be introduced after Brexit.
If you require further information on anything covered in this briefing please contact Lee Jackson(firstname.lastname@example.org) or your usual contact at the firm on 020 3375 7000. Further information can be found on the Schools page of our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2017