Immigration Law and "Brexit" - DAC Beachcroft

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Immigration Law and "Brexit"

Published On: 12 October 2016

As we have seen from the myriad of articles that have been published following the United Kingdom's vote to leave the European Union, the referendum is likely to have wide reaching consequences for the UK, in particular in the area of the 4 freedoms; movement of labour, goods, services and capital.

As an employer you may be wondering what options will be available to you if you were to move your workforce from the UK or seek to maintain mobility between the UK and other locations post Brexit.

We have set out a brief overview of the current position from Ireland's perspective. In all aspects it is important to consider separately those with established rights of residence and employment and those wishing to acquire such rights in the future. It is inherently more likely that those with established rights will be allowed to retain them in some form.

The current position

At present not only are Ireland and UK both part of the European Union, but the countries have, since the foundation of the Irish State, had a free travel area arrangement. To date, citizens of the UK have not required a visa to enter Ireland or employment permit to work here and equally, in theory, do not require a passport to enter Ireland. This arrangement also applies to Irish citizens in the UK. This position has not changed because of the referendum result. However, in the event of the UK exiting the EU, Ireland could be forced to abandon this arrangement by the other EU member states.

Non-UK/non-EU nationals working in the UK and wishing to work in Ireland do require separate work authorisation to work in Ireland and this will continue to be the case regardless of any other changes.

Possible Future Scenarios

UK retains free movement in the EU

If the UK government secures approval from the EU for its citizens to retain the right to free movement, the current position will not change. This arrangement would be similar to that in place for citizens of Norway and the other EEA member countries.

While this is a possible arrangement it seems, at this juncture, that the EU could be unwilling to permit the UK to cherry pick the benefits it wishes to have with the EU. If the UK retains free movement for UK citizens throughout the EU it is almost certain that a reciprocal arrangement in respect of EU citizens rights to travel to and work in the UK would also be retained.

UK citizens lose the right to free movement but the common travel area is retained

At present it appears that this option may well be a viable scenario. Should this occur UK citizens may not necessarily be permitted to travel and work within the EU area but a special exemption would exist in relation to Ireland. If this arises the position in relation to UK citizens travelling to and working in Ireland will remain the same subject to any conditions insisted upon by the EU.

It may be the case for example that the EU might permit the retention of the free travel area between the islands, but restrict the right of UK citizens to claim permanent residency or Irish citizenship based on length of time living in the Republic of Ireland unless they obtain the same residency and work permissions as other non-EU nationals.

This scenario is quite complex and would effectively be the weak link in the chain for both the EU and UK borders. As highlighted above, with one of the primary reasons for the "leave" vote being migration / border control, this scenario may well be a hotly debated topic. In recent days it would appear that a possible resolution to this would be the introduction of stricter border controls in Ireland and it is conceivable that UK border controls may operate in Ireland similar to the arrangements currently in place with the US Immigration Authorities at Dublin Airport.

UK citizens lose their right to free movement and there is no concession on a common travel area

This would leave UK citizens in the same position as other non-EU nationals. UK citizens would require an employment permit to work in Ireland and, subject to whatever migration rules are introduced, may also require an entry visa to enter Ireland.

EU nationals living in the UK would be permitted to enter and work in Ireland without the requirement for work authorisation, in line with EU free movement rules.


At present there have been no changes in the arrangements between the UK and the EU in relation to free movement of workers; and there will be no changes for some time. There is a requirement for the UK to trigger the leave mechanism pursuant to Article 50 of the Treaty on European Union before we will have any concrete idea as to the timelines involved and even then, there are likely to be no changes for a minimum of two years. Therefore, as things stand, there is no action required for anyone with a UK passport working in Ireland, or vice versa.

As a working assumption, all parties may be likely to accept that those UK nationals with established rights to live and work in Ireland (and vice versa) should retain those rights with minimal interruption.

However, employers and employees alike must remain vigilant to proposed changes to the rights of UK citizens living and working in Ireland during any negotiation process between the UK and EU on the leave process.
In addition, any company considering relocation after/just prior to a possible UK exit from the EU should ensure that it is fully apprised of its obligations in relation to UK nationals relocating with it.