Last month both the UK and the EU published their opening positions on the status of EU nationals working in the UK after Brexit. In this article we explain the gap between their opening positions and look at the practical implications for employers.
What we already knew
Since the Brexit vote just over a year ago, the UK Government has made clear that it wishes to secure a deal with the EU as early as possible in the Brexit negotiations to “guarantee” the rights of EU citizens who are already living in Britain, and those of British nationals in other member states. Now that negotiations are underway, the respective positions of the UK and the EU on this issue are becoming clearer.
It has also been clear – though constant reminders to this effect have proved necessary – that the referendum vote itself had no legal effect on the rights of EU citizens to live and work in the UK. These rights should change only at the point the UK leaves the EU. It appears, however, that the lack of certainty about future arrangements for EU nationals has led to a fall in the number of job applications from EU nationals in many sectors, with increasing numbers of skilled migrants leaving the UK to work elsewhere in Europe.
What is now clear
Both the EU Commission and the UK Government have now set out in some detail how they propose to resolve the position of EU migrants in the UK.
On the EU side, the position is that any agreement must cover not only rights that EU citizens have already exercised when the divorce agreement comes into effect but “the rights the enjoyment of which will intervene at a later date”. That would include not only pension rights, but the right to bring family members into the UK post Brexit.
The UK policy paper, which was published shortly after the EU’s position statement, focuses more closely on the practicalities of how to manage the transition. It proposes a new settled status in UK law for EU citizens who have been resident in the UK before a specified date (which is yet to be identified). The details are as follows.
- EU citizens who have resided in the UK for five years on the specified date will be eligible to apply for settled status.
- EU citizens who are resident in the UK before the specified date, but for less than five years, will be able to apply for a temporary residence status to apply until they have accumulated five years’ continuous residence and are eligible to apply for settled status.
- EU citizens who arrive after the specified date can stay for a grace period, but will then be subject to the new immigration regime for EU nationals post-Brexit.
EU nationals who have already obtained permanent residence documentation will be required to apply for the new settled status, although they may benefit from a streamlined application process.
The UK is proposing a two year “grace period” for applications to be made following the UK’s exit, meaning there should be no Brexit “cliff edge”.
It is likely that a similar deal will be offered nationals of EFTA countries (ie Norway, Iceland, Lichtenstein and Switzerland).
Some possible sticking points
While there is now greater clarity, there are a number of areas where the positions of the EU and UK are still some way apart.
The most obvious point is that the UK Government is holding open the possibility that it may impose a cut-off point after 29 March 2017 (when Article 50 was invoked) but prior to the date the UK formally leaves that EU. It is difficult to see how this would be compatible with the UK’s EU treaty obligations, although it is conceivable that generous transitional provisions could be used to compensate for this.
Another obvious point of disagreement is over the mechanism for enforcing the new rights of EU citizens living in the UK after Brexit. Unsurprisingly, the EU is insisting that these rights should be enforced by the European Court of Justice, while the UK’s position is that this should be a matter for domestic courts.
Thirdly, there is the question of existing freedom of movement rights for EU citizens who are settled in the UK prior to Brexit in relation to their present and future family members. As things stand, EU nationals have more generous rights in this respect than British citizens wishing to bring in family members from abroad. The UK Government is currently proposing that EU nationals with permanent residence rights who apply for family members to join them after Brexit will have no better rights that those that currently apply to UK citizens. The political difficulties of giving a favoured group of EU citizens more generous rights for the rest of their lifetime are obvious, but something that the EU considers should happen.
UK employers will be reassured by the promise of a grace period, which means that whatever the precise deal negotiated between the UK and the EU, there will be no “cliff-edge” at the point of Brexit, at least as far as immigration is concerned.
However the lukewarm reception of the UK’s proposals in the rest of the EU, and the continuing lack of detail about the future immigration regime for EU nationals, suggest that the final position is far from clear. There is continuing uncertainty for EU workers contemplating their long-term future in the UK.
That said, there are some certainties that employers can reinforce, not least the softening of the Government’s stance on immigration and the growing recognition that the UK’s economy will continue to have a need for EU migrants for many years to come. They will also wish to ensure that EU nationals have access to appropriate advice about what they can usefully to protect their position prior to Brexit. Our assessment of the options available has not significantly changed in the light of these new developments.