Brexit and EU citizens’ rights – UK proposals and action points for employers

The UK Government has published its proposals for safeguarding the position of EU citizens living in the UK post Brexit (link).  Settling the future of citizens exercising their right of free movement and providing legal certainty for EU citizens in the UK and UK citizens in the EU is recognised as a key priority for the withdrawal negotiations both by the UK and the EU. Despite these principles being agreed, negotiations on the detailed arrangements can be expected to be complex and the EU negotiator, Michel Barnier, described the UK's proposals as insufficient, claiming that "more ambition, clarity and guarantees will be needed".

The UK is proposing to introduce a new 'settled status' in UK law for EU citizens who have been resident in the UK before a specified date (not yet defined but to be no earlier than 29 March 2017 and no later than the date of the UK's withdrawal). There will be a grace period of blanket permission for all EU citizens to stay in the UK for a fixed period of time following the UK's exit from the EU (expected to be around two years) to allow sufficient time for applications to be made and for the relevant immigration status to be granted. 

After that period, EU citizens will need individual permission to stay in the UK.  For those who arrived prior to the specified date, this will take the form of a temporary residence permit if they have not yet accumulated 5 years' residence, and once they have 5 years' residence, 'settled status'.  Individuals will need to apply for these new permissions before the end of the grace period, even if they already have a Certificate of Permanent Residence (although the process for such individuals may be more streamlined). 

EU citizens who arrived in the UK after the specified date can take advantage of the grace period to remain in the UK temporarily, but will have to apply for the right to remain after the end of that period under whatever new immigration rules are put in place.  Further details are set out in our briefing here.

Compared with the EU's demands for citizens' rights, which require that the status and the rights derived from EU law will automatically be safeguarded for the lifetime of those concerned, there are several shortcomings in the UK's proposals. The UK proposals and the EU position paper are of course only the starting point in the negotiations and both sides can be expected to have to make some concessions. The main sticking points are likely to be the considerable dilution of some of the existing rights for EU citizens in the UK, in particular the loss of settled status where someone is outside the UK for any period longer than two years and the position of future family members who arrive in the UK after Brexit. The UK's refusal to allow for any jurisdiction by the European Court of Justice will also be controversial, although it has been suggested that a joint EU-UK arbitration committee to enforce any commitments set out in the withdrawal agreement may be an acceptable compromise.

Implications for employers

The uncertainty around the future rights of EU nationals currently working in the UK is one of the key challenges for employers.  In some sectors this has already caused the departure of significant numbers of staff.  Obviously the position of such workers will remain uncertain until the conclusion of negotiations on this issue, but these latest policy announcements at least set out the likely parameters and may provide some comfort to those already working here, particularly those who arrived prior to 29 March 2017.  Employers should take this opportunity to communicate with relevant staff, particularly if they have not yet done so.

Best practice is to provide frequent, clear messages, perhaps by email, intranet or open forums.  Some employers are also offering one-to-one surgeries with HR or with immigration lawyers (although care must be taken to avoid discriminating against non-EU nationals also requiring immigration advice).  Employers can point staff to the Home Office web pages here, which have been updated with the latest information.

Longer term, it is also essential that employers invest in building the skills they need and improving their talent pipeline for the future.