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30th April 2018

Brexit: April 2018 Update on Citizens’ Rights

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At the end of last year we reported on the agreement that had been reached between the United Kingdom (UK) and the European Union (EU) in the first stage of the Brexit negotiations on the issue of the rights of UK and EU expat citizens. Since then there has been some discussions back and forth between the parties, and on 19 March 2018 the UK and EU held a joint press conference to announce the agreement that had been reached following the second stage of the negotiations.

The current position

So, what has now been agreed?  The key points are set out below:

  • After the UK leaves the EU on 29 March 2019 there will be a transitional (or implementation period as it is currently referred to by the UK) that will end on 31 December 2020 during which EU citizens and their families will be free to live, work and study in the UK in the same way that they were able to pre-Brexit.
  • EU citizens who have been continuously and lawfully living in the UK for 5 years by 31 December 2020 will be able to apply for ‘settled status’ to enable them to stay in the UK indefinitely. That means they will be free to live here, have access to public funds and services and go on to apply for British citizenship if they wish.
  • People who arrive in the UK before 31 December 2020, but will not have been living in the UK for 5 years by that date, will be able to apply for temporary leave to remain following 5 years’ continuous residence, at which stage they can then also apply for settled status.
  • Family members who are living with, or join, EU citizens in the UK by 31 December 2020 will also be able to apply for settled status, usually after 5 years in the UK.
  • Close family members (spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) will be able to join EU citizens following Brexit, where the relationship existed on 31 December 2020.
  • EU citizens who arrive in the UK after 29 March 2019 but before the end of the implementation period on 31 December 2020 will have to register if they wish to stay in the UK for longer than three months.
  • EU citizens who want to stay in the UK following the end of the implementation period will have to apply for leave to remain in the UK, whether that be for settled or temporary status, by no later than June 2021.
  • EU citizens with settled status or temporary permission to stay will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
The rights detailed above have changed slightly in comparison to what had been agreed at the end of 2017, as at that stage it had been expected that the date by which EU citizens’ rights would be determined would be 29 March 2019. It has, however, now been confirmed that the relevant cut off date for EU citizens’ rights will be the end of the implementation period, 31 December 2020.

It has also been confirmed that the arrangements detailed above will be reciprocal and so the rights of UK citizens currently living in an EU member state, or who move during the implementation period, will be protected in the same way as EU citizens in the UK.

Applying for settled status

The Government has also released details about the process and timing for EU nationals to make an application for settled status. It has been confirmed that:                                                                                            

  • It is expected that EU citizens will be able to start applying for their residence documentation from late 2018 and that the application process will be online.
  • The Home Office has stated that the online process will be streamlined and user friendly. It is expected that EU citizens will have to provide an identity document, a photograph and declare any criminal convictions. However the intention is that the Home Office will draw on existing Government data, for example, employment records held by HMRC, to provide evidence of an applicants residence as a worker to make the process more user friendly.
  • The application fee will be no more than the cost charged to British citizens for a UK passport.
  • If an EU citizen already has a valid permanent residence document, there will be a simple process to exchange this for a settled status document free of charge and in these circumstances there will not be any repeat assessment of residence.
  • The Home Office will work with applicants to avoid errors and/or omissions affecting an application and applicants will be given the opportunity to provide supplementary evidence to rectify any errors or omissions.
After the implementation period

At this stage we still do not have any detail as to how the immigration system in the UK may look following the expiry of the implementation period.  In July 2017, the Government commissioned the Migration Advisory Committee (MAC) to gather evidence on patterns of EU migration and the role of migration in the wider economy and MAC is due to report back by September 2018. It is expected that the MAC report will be used as a basis for developing the future immigration system. It therefore looks unlikely that we will receive any further information on what system will be put in place from January 2021 onwards until much later in the year.

What should employers be doing now?

Although there is still a great deal of uncertainty about what the UK immigration system will look like in the future, the confirmation that EU workers will be able to continue living and working in the UK until at least December 2021 in the same way that they do now has provided some much needed clarity and reassurance for employers and their EU workers.

There is, however, some way to go as the agreement is still subject to the terms of the Withdrawal Agreement. Despite this, employers can start preparing their businesses as follows:

  • Ensure that sufficient support and information is given to your EU staff about Brexit developments. Keep up to date on developments and provide assurance to your staff that, at this stage, nothing has changed and you will continue to keep them informed as soon as you are aware of any changes.
  • Provide support where you have employees who wish to take steps to protect their UK immigration status, either by applying for permanent residence now or for a new status once that process goes live. Whilst Hewitsons advises employers and we are therefore unable to advise employees directly, we can provide employers with assistance in respect of supporting their staff in making applications and to enable accurate information and immigration advice to be circulated.
  • It may also be appropriate to reinforce any diversity policies that you have and if you do have any issues that arise in respect of bullying and/or harassment as a result of the Brexit vote it is important that employers take firm action.
  • Review your current reliance on EU employees to enable you to consider what, if any, measures will need to be taken. This could include:
  • Considering how many of your workforce are EU nationals or non-EU family members, their roles and how many are permanent or temporary employees. Also consider whether any of your staff have a time limited right to work and confirm when future checks need to be made.
  • Considering those employees that will need to apply for settled status and those that will need to apply for temporary residence if they wish to stay in the UK after 30 December 2020.
  • Considering the other options that may be available in terms of recruiting your labour once the UK has left the EU. For example, there are likely to be additional costs involved and extended timescales to consider if you need to recruit individuals from outside the UK after 31 December 2020.
  • Finally, consider whether you may need to put new systems and HR processes in place or change your current practices. Identifying at an early stage which of your current practices and systems may need to change once the UK leaves the EU will be helpful so that, once further detail is released, you can make any required changes more quickly.
For more information please contact Lynne Adams on 01908 247025 or click here to email Lynne.