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It has now been over a year since the UK voted to leave the European Union, but it has taken until this week for there to be any clarity on what the UK government proposes with regard to the over 3 million EU citizens who currently live and work in the UK.  The government has been accused of using these EU nationals as “bargaining chips” in the Brexit negotiations, and although there is now a little more detail, there has been criticism that the proposals do not go far enough.

 

For employers, the key questions are likely to be: 1) can I continue employing my current EU national employees, and if yes, will they require work permits or something similar to do so? And 2) will I be able to employ individuals from the EU post-Brexit without onerous immigration law requirements?

In brief, the government’s proposals so far are:

• EU nationals  will continue to enjoy their EU Treaty rights until Brexit in March 2019;

• EU citizens who are resident in the UK before the ‘specified date’ (a date not yet decided upon which may fall any time between 27 March 2017 and 29 March 2019)  who have accrued 5 years of continuous residence at the time of Brexit will be entitled to apply for ‘settled status’. This would give them the right to reside in the UK in any capacity, apply for British citizenship, and access public funds.

• EU citizens who arrived in the UK prior to the specified date who have not accrued 5 years of residence in the UK on Brexit will be able to apply for temporary status which will allow them to remain until they have accrued 5 years of continuous residence after which they will be able to apply for settled status

• EU citizens who arrive after the specified date will be allowed to remain in the UK for a temporary period and may become eligible to settle permanently in the UK, but no guarantees have been put forward for this group.

• Family members of EU citizens (whether they are other EU citizens or from other countries) who have joined the EU citizen before the date of Brexit will be able to apply for settled status as well, as long as they also have 5 continuous years of residence in the UK, or for leave to remain to acquire this period of residence. Family members who join EU citizens after the date of Brexit will be subject to the same rules that apply to non-EU nationals joining British citizens. This may mean that the criteria currently applied to family members joining British or settled third country nationals, such as the minimum income threshold of £18,600, may be applied to EU family members wishing to come to the UK in the future.

The government has said that all EU citizens, regardless of when they arrived in the UK, will require to apply to the Home Office for permission to stay, which will be evidenced through a residence document. This will be evidence for employers that the individual has permission to live and work in the UK. Settled status would generally be lost if the person was absent from the UK for more than 2 years.

It has further been confirmed that the scheme for applications from EU residents will be different to the current permanent residence regime, which gives EU nationals confirmation of their residence status under EU free movement laws. This means that the approximately 150,000 people who have applied for permanent residence since the Brexit referendum will have to reapply under this new regime, although the government has said that it plans to “streamline” the process for them.

Details of what the new process will entail have not been published, although the government has not ruled out using ID cards for EU nationals. What is clear is that handling applications from millions of residents will be a massive administrative challenge. To avoid a gap between the end of free movement rights on Brexit, and the granting of UK immigration status to all UK resident EU nationals, the government has confirmed its intention to provide a temporary blanket leave to remain by way of a grace period, currently anticipated to be up to 2 years, to allow individuals to make an application without having to leave the country to do so. They will be able to continue working as normal during this time. It is also anticipated that a voluntary scheme to enable EU citizens to apply for permission to stay and residence documents before Brexit will be established in 2018.  Fees for the new scheme have not yet been specified, but the government has stated that they intend to “set fees at a reasonable level”. It remains to be seen how these will compare to the £1,282 fee to become a British citizen.

The specified date, which will be the cut-off for automatic rights to remain, will be subject to negotiation. Although the government has given a range of dates, commentators have noted that it is unlikely the EU will agree to any specified date which is in the past, and it is expected that the specified date will coincide with the date of Brexit itself.

It is important to note that these proposals remain subject to reciprocal rights being agreed with the EU. The remaining EU states had put forward a proposal earlier this month which offered a lifetime guarantee to Britons currently living in Europe to continue enjoying all rights they currently hold, and freedom of movement to work or retire in any EU country of their choice. The UK proposals are a notably inferior to this, especially in relation to the right to bring third country national family members into Britain after the date of Brexit. Points such as mutual recognition of professional qualifications have also been tabled for future negotiation.

While the government’s proposals will be a relief to many employers and workers affected by it, much of the detail is still up in the air. In particular, without a specified date being agreed, it will be difficult for employers to engage in long-term planning in relation to their EU national employees who have come and will come to Britain between the date on which Article 50 was triggered and the date the UK will leave the EU. We will keep you updated on the negotiations as they develop, but if you have any specific concerns about your workforce, please get in touch with a member of our Employment team.

Annika Neukirch, Solicitor

 

Chambers UK 2018

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