Stuart McWilliams: All EU nationals must prepare for Brexit now to avoid loss

Stuart McWilliams is an accredited specialist in Immigration Law and Partner, Morton Fraser
Stuart McWilliams is an accredited specialist in Immigration Law and Partner, Morton Fraser
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In recent months, I have spent a lot of time meeting with EU nationals concerned about their status once the UK leaves the EU. As negotiations in parliament drag on, and with a Conservative leadership election now in the mix, there is a lot of confusion about the future.

There is some clarity about the rights of EU nationals already living in the UK regardless of whether the UK leaves with or without a deal, but over the last few months we have been surprised by some of the things we’ve learned:

1. There are a lot of misconceptions about who needs to register

Whenever I deliver an information session to EU nationals, I find at least one person who doesn’t think they need to register with the Home Office because, for example:

n They’ve lived in the UK for a number of years;

n They’re married to a British national;

n They work for a public body;

n They already have a Permanent Residence card; or

n They studied in the UK.

The only people exempt from registration are those with British or Irish nationality. Even people who already have Permanent Residence cards will need to register to remain in the UK as these will no longer be valid once the UK leaves the EU.

Initial figures for registration look promising, with around 750,000 applications. However, there are some concerning aspects of the latest statistics, for example only a small percentage of Polish and Spanish nationals have applied, compared to other nationalities.

The recent announcement that, should he become Prime Minister, Michael Gove will change the system has not helped with this confusion and while the situation could change, our advice is still that clients should register as soon as possible.

2. Many people think the registration process is voluntary

Registration will be compulsory for anyone who wants to remain in the UK after Brexit. Recently, I spoke to someone who believed EU nationals shouldn’t register because, if there was large scale non-compliance, the Home Office would be unable to take action against a large number of people.

This is a big risk, as changes in recent years mean the Home Office will not need to take enforcement action against people who don’t register. Instead, anyone who doesn’t register will immediately:

n Lose their right to work in the UK, meaning their employer will have to dismiss them;

n Lose their right to access public services;

n Could have their bank accounts closed; and

n Possibly have a UK driving licence revoked.

The consequences of non-registration are severe, and therefore it is important that people ensure they are registered.

There have been suggestions that the government could change the law to make registration unnecessary, and these only add to the confusion for individuals concerned about their status. At the moment there are no proposals to amend the law and registration will remain compulsory.

3. Many employers are not prepared for registration

I recently blogged about some of the problems facing employers over the next 18 months, as staff have to register with the Home Office. My experience has been that many employers are still adopting a “wait and see” approach and do not intend to speak to staff until a deal is reached, or the UK leaves the EU without a deal.

This approach has significant risks as monitoring staff registration will be a long term project for many businesses, and leaving it to the last minute increases the possibility of mistakes being made. On a practical level, I’ve already seen cases where key staff have left the UK due to uncertainty about their status.

Employers need to take steps now to minimise the risk that their staff miss the registration deadline, as otherwise they risk staff becoming illegal workers. The penalties for illegal working include:

n Fines of up to £15,000 for a first offence;

n Possible criminal penalties, if the company had reasonable cause to believe someone is working illegally;

n Closure of premises for 48 hours to allow the Home Office to investigate the right to work of other staff.

My recommendation to all employers is to take steps now to begin to prepare for Brexit. By doing so, the process will be easier to manage, will reassure their employees and save a last-minute panic by employers and staff.

Stuart McWilliams is an accredited specialist in Immigration Law and a Partner with Morton Fraser