On 8 December 2017, the Government and the EU Commission reached an agreement on EU citizens’ rights following the UK’s withdrawal from the EU. We set out below a summary of the key points for both EU citizens and UK employers to be aware of. Contributor Alan Kennedy, Associate at transatlantic law firm Womble Bond Dickinson
EU citizens who arrive in the UK before 29 March 2019
EU citizens who, by 29 March 2019, have been continuously and lawfully living in the UK for five years will be able to apply to stay indefinitely by getting ‘settled status’. That means they will be free to live in the UK, will have access to public funds and services and will be able to apply for British citizenship (once they are eligible to do so).
EU citizens who arrive in the UK by 29 March 2019, but have not been living in the UK lawfully for five years when the UK leaves the EU, will be able to apply to stay until they have reached the five-year threshold. They can then also apply for settled status. Family members who are living with, or join, EU citizens in the UK by 29 March 2019 will also be able to apply for settled status, usually after five years in the UK.
Close family members (ie spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) will be able to join EU citizens after the UK leaves the EU, where the relationship existed on 29 March 2019. EU citizens who already have settled status (or temporary permission to stay in the UK) will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
EU citizens who arrive in the UK after 29 March 2019
Where an EU citizen arrives in the UK after 29 March 2019, the Home Office has confirmed that it is their intention that there will be a period of time where such individuals can still live, work and study in the UK, with a registration system.
The implementation period for this, including how long it might last, is still subject to negotiations with the EU. Further, details of the immigration arrangements that will apply during this period, and after it ends, have not yet been agreed and are also still subject to negotiations.
What to do now
The Home Office has stated on its website that EU citizens (and UK employers) do not have to do anything now and that there will be a streamlined online application process, which is likely to go live in the second half of 2018.
The Home Office has also confirmed that the scheme will remain open for applications for a considerable period (ie at least two years) after the UK leaves the EU so that individuals have sufficient time to make their applications. During this period, EU citizens’ rights in the UK will be protected and, if an EU citizen applies under the scheme prior to the application closing date but has not received a decision before the end of the period, they will be entitled to continue living in the UK until a decision has been made.
In summary, the application process will: Require EU citizens (and their family members in the UK) to apply to get their status document, which will provide evidence that they have permission to continue living and working in the UK.
Require EU citizens to: provide an identity document and a recent photograph to confirm their identity and nationality; and declare any criminal convictions. Cost no more than the fee charged to British citizens for a UK passport (currently £72.50). Alternatively, if an EU citizen already has a valid permanent residence document, it will be free.
The Home Office has also confirmed that: EU citizens will not be required to account for every trip they have taken out of the UK, show evidence that they hold comprehensive sickness insurance or give their fingerprints. They will provide support to ensure applications are not rejected because of simple errors or omissions.
They will contact an individual where it appears a simple omission has taken place and will provide assistance to resolve it, including notifying an individual what further evidence is required, before a decision is made. The application process will be quick, stream-lined and as user-friendly as possible, and the burden of proof on EU applicants will be lower, making it easier for them to apply and for positive decisions to be granted.
While the Government has suggested that employers do not need to do anything now, to be pro-active we would suggest that the following steps are taken:
Conduct an audit of the current workforce – employers should assess their current workforce to identify how many EU employees (and family members of EU nationals) they currently employ and to ascertain how many of those individuals can meet the current five year residency requirements. The workforce audit should also include checking the immigration status of all members of staff, the length of their service in the UK or abroad and, for EU nationals, the date on which they can apply for documents to certify their permanent residence in the UK. It would also be advisable for employers to ensure that their EU employees can provide evidence to show how long they have currently been living and working in the UK.
EU employees with at least five years residence – employers may wish to encourage those individuals to apply for a permanence residence document. These documents do not in themselves confer any rights but provide evidence that the Government has acknowledged the individual is exercising their right of residence or has acquired permanent residence. However, as confirmed by the Government, a permanent residence document only provides evidence of an EU citizen’s rights under European law and, after the UK leaves the EU, those individuals will still need to apply for a settled status document.
Consult with EU employees – employers should provide reassurance to any EU employees that their rights are protected and to explain the process required to apply for settled status. Put in place a Brexit team – depending on the number of EU employees in the business, employers may wish to put in place a Brexit team to carry out the above steps, to deal with any queries from EU employees regarding their status and to assist with applications when the online application process goes live.