Brexit – what does it mean for EU nationals?
With the looming deadline of 29 March 2019 for the UK to leave the EU, employers have increasingly been asking us what they can and should be doing in respect of its EU national workforce.
Unfortunately, until any “deal” is achieved there remains uncertainty on the longer-term protections for EU nationals in the UK. However, there are some practical steps that EU nationals can take now to help secure their status in the UK, whether a withdrawal agreement is achieved or not. We are therefore advising employers to take a proactive approach in informing their EU national employees of these rights.
Not only will this be key for employers who wish to retain their EU national workforce long-term, but will also mitigate the risk of employing EU nationals illegally.
Permanent residence for British Nationality
For European nationals and their family members currently in the UK, they may have the right to apply for permanent residence or a residence card under the current EEA Regulations.
For a permanent residence document, this usually involves providing evidence that the European national has spent a continuous period of five years in the UK exercising one of the free movement rights, for example, a worker for which they provide their P60s for each year.
It has been confirmed that if the draft Withdrawal Agreement is ratified, individuals will continue to be able to apply for a permanent residence document up to 31 December 2020.
The benefit of securing a permanent residency document is that individuals can then use this to support their application for British nationality.
Apply for settled status or pre-settled status pursuant to the European Settlement Scheme (EUSS)
Whilst the EUSS was first introduced pursuant to the negotiated withdrawal agreement, the UK government have confirmed that it will continue to apply in the event of a “no-deal”.
As part of the EUSS, EU nationals who have been residents in the UK before 29 March 2019 are able to apply for settled status, or pre-settled status, to allow them to continue living and working in the UK after 30 June 2021.
Under the current draft withdrawal agreement, applications under the EUSS can be made up to 30 June 2021.
In the event of a no-deal, applications can be made up to 31 December 2020.
However, despite the above deadlines, we are advising employers to encourage their EU national workforce to apply before 29 March 2019 as there will be no legal basis for their stay if the UK government revokes the EEA regulations regarding free movement, (which we understand the government intends to do as soon as possible after the 30 March 2019 if there is no deal).
How to apply for settled status or pre-settled status?
Applications can be made online or via an app. The application process is said to be quick – taking a few minutes to complete – in efforts to reduce the amount of paperwork.
Applicants will be asked to prove:
- Their identity with a valid ID (e.g. passport or national identity card)
- Residency in the UK
- Relationship to a family member from the EU living in the UK, if they want to come to the UK from outside the EU
The online registration process was previously priced at £65 for adults and £32.50 for children under 16. However, Teresa May (PM) has since confirmed the application process should be free. Therefore, those who have already paid a fee, or are charged a fee, will be entitled to claim a refund.
If the application is rejected, the applicant has 28 days from the date of their decision to appeal if they are eligible.
For further information on the application process, including the eligibility criteria, please see the following government website link here.
You can find the app here.
Or you can make an appointment at one of 13 locations in the UK to get your documents scanned. Find your nearest location here.
There are also helpline free telephone services available to provide guidance, as below:
For applicants inside the UK – Telephone: 0300 123 7379
For applicants outside the UK – Telephone: +44 (0)203 080 0010
For organisations helping others to apply – Telephone: 0300 790 0566
What about EU nationals entering into the UK after 30 March 2019?
EU nationals arriving in the UK after 30 March 2019 cannot rely on EU treaty rights unless provided for in any withdrawal agreement. In such circumstances, they will be subject to up to a maximum three-month period during which they will need to apply for a temporary three-year residence permit. At present, it is unclear what the actual basis of a grant will be (i.e. proof of purpose to study or work etc.). Further, a temporary three-year residence permit is not currently renewable and does not lead to settled status. Therefore, at end of the three-year period, the EU national will be required to apply for continued immigration rights under the future immigration system that is likely to prioritise skilled workers and other types of specific labour needs.
What else should employers be doing now?
If you haven’t already done so, we strongly advise employers to undertake a full audit of their workforce to identify who is impacted by Brexit. This will include non-EEA nationals that are relying on the status of their EEA national family members to remain and work in the UK.
Employers should be taking an active role in encouraging employees to consider their status early on and apply for the most appropriate documentation for them (as above). They are also encouraged to offer practical support and resources for their employees, for example providing up-to-date information and contacts to immigration experts. Subject to how many employees may be affected, businesses should consider what level of support they are willing to provide.
Employers should also make use of the government’s employer EU settlement scheme toolkit, which provides factsheets, posters, and videos for employers to raise awareness among their staff.
We also recommend that all employers undertake full right-to-work checks on their employees by May 2021, well before the EU settlement scheme deadline for applications on 30 June 2021. This is to ensure that all of their employees still have the right to work for them in the UK. In the event of a no-deal, employers should be diarising right to work checks no later than October 2020.
Employers should also be planning for the potential loss of EU nationals who are not afforded the right to remain. This will include undertaking a review of your talent and succession planning. If your business requires key EU nationals to remain in your business, it will be important that they are recruited before 29 March 2019 if the UK leaves the EU without a deal. Even if a deal is achieved, businesses should seek to secure their key EU nationals by 31 December 2020 at the latest.
Lastly, businesses should consider applying for a Tier 2 sponsor licence if, as it has been indicated, the work sponsorship regime will be extended to European nationals in any future post-Brexit immigration system.
For more information, please get in touch with either Claire, Rebecca or Rachael in our employment team.