Employing EU citizens in the UK – what you need to know with and without a Brexit deal and beyond

Exit Day- 31st Dec 2020

If the proposed (November 18) Withdrawal Agreement is in place

Freedom of movement remains during the transition period, that is until 31st December 2020 or it could be until the end of 2022 if the transition period is extended (as the November 18 draft of the Withdrawal Agreement permits). The transition period is referred to in the Withdrawal Agreement as the  'ImplementationPeriod'

Those living lawfully in the UK before the end of the  Implementation period are eligible for ‘settled status’ under the EU Settlement Scheme which has been fully open since 30 March 2019 and the deadline for applying is 30th June 2021. 

The cost for an application was announced as £65 for an adult and, interestingly, some employers indicated that they would meet this cost for their employees who are EU citizens working in the UK. However, following the first defeat of the Government's withdrawal agreement  in the 'meaningful vote' in the House of Commons, the Prime Minister announced, on 21st January 2019, that the fee would be scrapped.

The government has provided funding for organisations, including disability and homeless charities, to help people apply and has put in place  Assisted Digital support to use the EU Settlement Scheme online application form for applicants in the UK who do not have the appropriate access, skills or confidence to complete the form.

The main points of the settlement scheme are

  • EU citizens who have been living in the UK continuously for five years will be eligible for settled status in UK law.
  • EU citizens who arrived before the end of the Implementation Period, but who have not been here for five years, will be eligible for pre-settled status, enabling them to stay until they have accumulated five years, after which they may apply for settled status
  • the Withdrawal Agreement will also allow close family members who live in a different country to join an EU citizen at any time in the future under current rules, if the relationship existed before the end of the Implementation Period
  • EU citizens protected by the agreement will continue to be able to work, study and establish a business in the UK as now
  • EU citizens with settled status or pre-settled status to stay may access healthcare, pensions and other benefits and services in the UK, as they do currently
  • frontier workers (EU citizens who reside in one state, and work in the UK) will continue to be able to enter the UK to work under current rules, if they started this work before the end of the Implementation Period
  • even those EU citizens with Permanent residence should apply for settled status.
  • Irish citizens do not need to obtain settled status. 

https://www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status

Five years’ continuous residence' means that for 5 years in a row the person has been in the UK for at least 6 months in any 12 month period, except for:

  • one period of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting)
  • compulsory military service of any length

An employer toolkit has been produced to help equip employers with the right tools and information (including an employee briefing pack) to support EU citizens and their families to apply to the EU Settlement Scheme.

In February 2019, the government  laid before parliament  The Immigration, Nationality and Asylum (EU Exit) Regulations 2019 to come into force post Brexit. These are technical Regulations  made in exercise of the powers conferred by sections 8(1) of the European Union (Withdrawal) Act 2018  in order to address failures of retained EU law to operate effectively in relation to immigration and nationality arising from the withdrawal of the United Kingdom from the EU

In the case of a no deal Brexit

In December 2018, the government issued a Policy paper on citizens' rights in the event of a no deal Brexit

The main points are:

  • There will be no transition period . 
  • The UK will continue to run the EU Settlement Scheme for those resident in the UK by exit day in a ‘no deal’ scenario  so that EU citizens and their family members  resident in the UK by exit day will be able  to work, study, and access benefits and services in the UK on the same basis after we exit the EU as they do now.
  • Those here by exit day will have until 31 December 2020 to apply for status under the scheme. Until this time, EU citizens will continue to be able to rely on their passport (as a British citizen may) or national identity card if they are asked to evidence their right to reside in the UK when, for example, applying for a job, as they do currently.
  • As there would be no agreed implementation period, those EU citizens and their family members resident here by exit day would have until 31 December 2020 to apply for a status under the EU Settlement Scheme, but with no six-month ‘grace period’ beyond this.

https://www.gov.uk/government/publications/policy-paper-on-citizens-rights-in-the-event-of-a-no-deal-brexit.

In January 2019, the Government outlined no deal arrangements for EU citizens who enter the UK to visit, work or study after exit day in the event of no deal: The government will seek to end free movement as soon as possible and has introduced the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 to achieve this. The government has also, in February 2019, laid regulations before parliament so that:

  • EEA and Swiss citizens who arrive after exit day and wish to stay longer than three months will need to apply to the Home Office for European Temporary  Leave to Remain (ETLR) within three months of arrival. Subject to identity, criminality and security checks, leave to remain will be granted for 36 months which will include permission to work and study. It will not lead to indefinite leave to remain in the UK or status under the EU Settlement Scheme.
  • EU citizens wishing to stay for longer than three years will need to make a further application under the new skills-based future immigration system, which will begin from 2021 (see below).
  • Irish citizens will not need to apply for European Temporary Leave to Remain and will continue to have the right to enter and live in the UK under the Common Travel Area

The no deal arrangements made no mention of whether employers would need to change their right to work checking procedures but Government guidance issued on 1st  April 2019 states that there will be no change to the way EU, EEA and Swiss citizens prove their right to work until 1 January 2021 and this remains the same if the UK leaves the EU without a deal.

What about EFTA citizens?

In December 2018 , the government announced that it had reached Separation agreements with Iceland, Liechtenstein, Norway and Switzerland which include the protection of citizen's rights post Brexit, if the Withdrawal Agreement is in place. Essentially, the UK’s Settlement Scheme will apply to EEA, EFTA and Swiss nationals in the same way as EU citizens.

On 2nd April 2019, the UK and Norway, Iceland and Liechtenstein signed an agreement to protect the rights of citizens in each other’s countries in the event that a withdrawal agreement is not reached with the EU.

https://www.gov.uk/government/news/uk-and-eea-efta-states-strike-agreement-to-protect-citizens-rights-in-a-no-deal-scenario

Recognising EU worker's qualifications post Brexit

Legislation introduced on 7 March 2019 means health and social care workers with professional qualifications from EU and Swiss institutions who are currently registered can continue to practise in the UK as they do now as their training and experience will be accepted by all regulatory bodies for the health and social care sectors, including:

  • General Medical Council
  • Nursing and Midwifery Council
  • General Pharmaceutical Council
  • General Dental Council
  • Health and Care Professions Counci

https://www.gov.uk/government/news/eu-workers-qualifications-will-be-recognised-after-eu-exit?utm_source=3b2cbbc0-c2b1-4ff8-9aad-603158ae49a3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

UK Citizens working in the EU

There is country by country information at 

https://www.gov.uk/uk-nationals-living-eu

Government guidance

On 1st April 2019, the  government published guidance on Employing EU, EEA and Swiss citizens and their family members after Brexit

Information for individuals, businesses (sector by sector), and for UK nationals living in the EU and EU citizens living in the UK is found at
https://euexit.campaign.gov.uk/?gclid=EAIaIQobChMI_o_Ps9y24QIVzpztCh0LaARdEAAYASAAEgL-1vD_BwE&gclsrc=aw.ds

UK Citizens working in the EU post Brexit - country by country information at https://www.gov.uk/uk-nationals-living-eu

From 1st January 2021- a new Immigration system for the UK

Government proposals

In December 2018, the  government published a White Paper making it clear that freedom of movement will end on 31 December 2020 and setting out key provisions for 2021 and beyond, which will apply whether  we leave Europe with or without a deal.

The White Paper takes into account the recommendations made in the Migration Advisory Committee report on the impact of EEA migration in the UK published in September 2018.

Proposals in the White Paper include:

  • Introducing a single, uncapped route which gives access to highly skilled and skilled workers from all countries.
  • Such workers will need an employer to sponsor them, but employers will no longer be required to carry out a resident labour market test as a condition of sponsoring a worker.
  • The aim will be for the sponsorship system to be  straightforward and light touch as possible, and to process the great majority of work visas within two to three weeks.
  • The government will engage businesses and employers as to what salary threshold for skilled labour but they refer to the recommendations made by the Migration Advisory report of retaining the minimum salary threshold at £30,000
  • There will be no separate scheme for unskilled labour but a transitional arrangement will be put in place allowing for 12-month visas for workers from specified countries for which there will be no specific sponsorship requirement but also no right to access public funds or bring dependents.

https://www.gov.uk/government/publications/the-uks-future-skills-based-immigration-system