Brexit: protecting EU Workers

The UK is scheduled to leave the EU on 29 March 2019.  Concerns have been expressed by employers in FS about their ability to retain talent and recruit talented workers from the EU. Of particular concern is the ability to easily and quickly move staff between offices in the UK and the rest of Europe.   

The Government’s latest paper on the rights of EU workers in the UK was released on 21 June 2018 entitled “EU Settlement Scheme: Statement of Intent.”  The document sets out in detail how the new scheme will operate and contains a draft set of criteria and guidance on the supporting documents required.  At this stage it only applies to EU countries as the UK needs to negotiate the terms with Norway, Iceland, Lichtenstein and Switzerland although it is anticipated it will apply to nationals of these countries.

What is the EU Settlement Scheme?

Those EU nationals who moved to the UK by 31 December 2020 and have lived in the UK for a continuous period of 5 years can apply for settled status in the UK i.e. permanent residence. Therefore someone who has lived and worked in the UK for 5 years should qualify for settled status.  It also means that stay at home parents, retired people and students will all be eligible.

Those with less than 5 years continuous residence can apply for pre-settled status and once they meet the 5 years continuous residence requirement they can then apply for the settled status at no extra cost.

How much will the application cost?

The cost of the settled status application or pre-settled status will be £65 for adults and half that cost for children under 16.

How is the application made?

The new application system is designed to be user friendly drawing on existing government data. The application will be mostly online and via an app accessible on android phones.  In some cases it can be completed entirely online with the app allowing EU citizens to verify their identity.

What are the criteria?

There will be three stages: proving identity, checking there is no serious criminality or public security concerns and evidencing residence in the UK.  In order to qualify for settled status absences must be no more than 180 days in any 12 month period in the 5 years.

Documentation

The Home Office will check Government data such as employment and benefit records for proof of residence. Applicants can also send in evidence of residence in the UK if required. For workers there should be no need to send in further evidence as there will be records with HMRC.

When will the scheme come into effect?

The EU Settlement Scheme will come into effect later this year as a pilot with limited participation and should be open fully by 30 March 2019. Applicants can apply for the new settled status before Brexit when the scheme is opened.  The last date for making the application is 30 June 2021.

What about those EU nationals who already have permanent residence in the UK

They can apply to swap out their current document for the new style document at no extra cost and the application will be simplified.

Free Movement

Free movement will continue until the end of the Brexit implementation period on 31 December 2020. This means that EU workers will continue to be able to live and work in the UK without restrictions.  After 31 December 2020 immigration controls should apply and the extent of controls depends on whether we have a soft or hard Brexit.

The Government released its Brexit White Paper “The future relationship between the United Kingdom and the European Union” on 12 July.

This indicates a harder Brexit in terms of immigration control.   It proposes a reciprocal framework for mobility to support tourism, education and to enable businesses to attract the brightest and the best and support global operations. However, this will be consistent with the ending of free movement and respecting the UK’s control of borders and the Government’s objective to reduce net migration. There is suggestion of a visa free electronic registration system for visitors and hints at work visas in line with the system for non EU nationals which will be based on a reciprocal arrangement with the EU. This seems to indicate that the Government will be bringing EU migration into the migration system used for non EU nationals.

It is therefore advisable for EU nationals resident in the UK to apply under the new scheme by 31 December 2020 although the scheme is open until 20 June 2021.

New EU workers coming to the UK after 31 December 2020 are likely to need a visa to work in the UK.

Concerns for employers

Workers post 31 December 2020

• It is still not guaranteed what type of Brexit we will have and whether new workers after 31 December 2021 will need a visa to work in the UK as it depends on what is agreed with the EU
• The Government’s plan is to impose immigration control on EU workers post 31 December 2020 but what that system looks like has not been set out and is likely to take some time to map out.  The complexities of the system are not revealed, nor the time or costs involved in obtaining work visas for EU workers post 31 December 2020 making it difficult for employers to plan ahead.

Workers UK resident before 1 January 2021

• There is not sufficient provision for frontier workers (those working in the UK but resident elsewhere) and whether after 31 December 2021 they will require a visa to work in the UK
• It is not clear what happens if someone does not meet the residence requirements and their absences are over the limits. Can they keep extending their pre-settled status until such time as they meet the residence requirements for settlement?
• The app will only work on android phones so when choosing to verify identity via the app this will not work on iPhones
• Those EU workers eligible for permanent residence now may want to apply under the current scheme if they want to apply for British citizenship. It is a requirement of the citizenship application to show permanent residence or settled status. Some EU countries only allow dual nationality if the second nationality is of another member state of the EU. Therefore citizenship applications should be made before 29 March 2019.

This article was written by Rose Carey. For more infortmation please contact Rose on +44 (0)20 7427 6524 or at rose.carey@crsblaw.com.