Our clients are increasingly asking us for advice about how they can retain and support EU staff following the UK’s decision to leave the EU. We provide the answers to the most frequently asked questions.
Please note: The status and rights of EU citizens working in the UK is subject to ongoing negotiations and may therefore change.
1 Are there any current restrictions on our ability to retain or engage staff from the EU?
No. Whilst the UK remains a member of the EU it is bound by the principles of the freedom of movement, which means that EU citizens can continue to work here without any restrictions.
Our departure from the EU formally began on 29 March 2017 when the UK served the ‘Article 50’ notice. The UK has two years in which to agree a deal with the EU, although this can be extended if the remaining 27 EU countries agree. If this timetable is not amended, the UK will formally leave the EU at 11pm on 29 March 2019.
2 Will we be able to continue to engage our existing EU staff if the UK exits the EU on 29 March 2019 without a deal?
If the UK leaves the EU without a deal, the UK will no longer be bound by EU law and, without any other agreement between the UK and the EU, the UK will be able to set its own immigration policy in respect to EU citizens. In a “no deal” scenario it is impossible to predict exactly what rules the government would implement.
If the UK were to treat EU citizens the way they treat current non-EU citizens, this would mean that EU citizens would need a visa to continue to live and work here.
However, the government has estimated that there are more than three million EU citizens and their families living in the UK. There is substantial political will to protect these individuals and it has not been suggested, even in a “cliff edge Brexit,” that the government would withdraw the right to live and work in the UK of EU staff who have been living and working in the UK prior to Brexit.
3 Will we be able to continue to engage EU staff if the UK reaches an agreement with the EU?
It depends. The UK government envisages the UK departure to be in two stages; the first stage being when the UK leaves the EU and moves to a transitional period, the second stage being after the final deal has been implemented. This creates three categories of EU staff:
3.1 Those who arrived prior to the UK leaving the EU
3.2 Those who arrive during the transitional period
3.3 Those who arrive after the transitional period has ended.
For those who arrive prior to the UK leaving the EU, a joint report from the negotiators of the EU and the UK, published on 8 December 2017, has set out the ‘common understanding’ that has been reached. This provides that on the date the UK leaves the EU, EU citizens who reside in the UK (and their family members) will continue to benefit from existing EU free movement rights.
Reciprocal protections will be given to UK citizens living in the EU.
Under the terms of the ‘common understanding’, EU citizens who are not living here by the date of exit will not enjoy EU free movement rights. To be able to live and work here they will have to meet the conditions imposed by the UK government, although these may be covered under the terms of the transitional period or the permanent deal depending on when they arrive. It has been suggested that during the transitional period, some form of free movement right will apply. The government has not said how they will treat EU workers arriving after the end of the transitional period.
4 What steps can our EU staff take now to put them in a better position to continue to live and work here once we exit the EU?
EU staff who have lived and worked in the UK for at least five years can apply for ‘permanent residency’ provided they have exercised their treaty rights for a continuous period of five years during this time. This means that they must have been lawfully living in the UK to study, work (either on an employed or self-employed basis), or have been economically self-sufficient.
Whilst EU citizens currently automatically acquire permanent residency after five years of continuous residence in the UK, the Home Office provides a document certifying that the citizen has this right. Historically, few EU citizens living in the UK bothered to make this application (which costs £65 and requires answers to a very lengthy set of questions). This is because the application process is complex and EU staff and their family members have to account for every trip they have taken in and out of the UK to ensure that this does not breach the residency requirements. In addition, EU citizens who are self-sufficient or are here to study have to hold private medical insurance. It is very easy for applicants to make a mistake and some employers are obtaining legal advice for their staff to help them through the process.
A foreign national who has held permanent residency status for twelve months can also apply to naturalise as a British citizen. EU citizens who are married to a UK citizen can apply immediately for citizenship.
UK citizenship offers the best protection and once this is obtained, individuals with dual UK and another EU citizenship cannot be deported or otherwise removed from the UK. Becoming a UK citizen can affect the citizenship that an individual already has.
5 Has the government given any indication of what rights EU citizens will enjoy post-Brexit if a deal is reached?
Only for those already living in the UK. In November 2017, the government published a ‘technical note’ on EU citizens’ rights and, read in conjunction with the common understanding with the EU of 8 December 2017, we have a clear idea how the government proposes to treat EU citizens already working or living in the UK.
It intends to introduce a new concept of ‘settled status’ which, once granted, will enable EU citizens and their families to continue to lawfully live and work in the UK post-Brexit.
It will also introduce a new, streamlined process to determine this, which will cost around £72.50. To meet the criteria, EU citizens will have to show that they have lived in the UK for at least five years and have been engaged as a worker, self-employed person, student, or have been economically self-sufficient during that time. Family members of EU citizens who meet this test will also be able to apply for settled status.
Applicants who have already obtained a document from the Home Office evidencing that they have ‘permanent residence’ here will be able to go through a ‘simple process’ to exchange this for a settled status document. A further fee will be payable.
Applicants who do not have five years’ continuous residence in the UK will be given ‘temporary status’ if they can prove they lived in the UK before, what is referred to as, the ‘specified date’. This is likely to mean the date we formally leave the EU.
The government has indicated that EU citizens seeking settled status must apply within two years following our exit from the EU. Provided EU citizens are lawfully living and working here they will not be required to leave the UK on the date of exit and will have their status protected. It also intends to set up a voluntary application process whereby EU workers already living here will be able to apply for settled status before the date of our exit.
However, these proposals are not finalised and will only become legally binding once the Withdrawal Agreement and Implementation Bill is incorporated in UK law. The Withdrawal Agreement is the subject of on-going Brexit negotiations and will not be set out until the negotiations are near completion.
For those arriving after Brexit, the Government has not published any proposals.
6 What would happen if future EU citizens coming to the UK after Brexit are treated in the same way as non-EU country citizens are under the current rules?
EU citizens would need visas to live and work in the UK. Currently a skills charge of £1000 per year per employee brought into the UK under Tier 2 of the points-based system is imposed on employers who sponsor skilled workers from outside the EU.
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