Clarity for employers on EU citizens’ rights following Brexit
Finally, some clarity has been provided for employers in relation to the rights which EU & UK citizens will have as a result of Brexit.
The first phase of Brexit negotiations came to an end in Brussels in December 2017. This resulted in a joint report being produced from the negotiators of the EU and the UK Government setting out their “common understanding” on the rights of citizens post-Brexit.
Finally, some clarity has been provided for employers in relation to the rights which EU & UK citizens will have as a result of Brexit. This degree of clarity will be important for workforce planning for many employers who rely heavily on EU migrants to fill jobs in the UK and who, until now, have had little clarification about what the future will bring.
What is the status of this joint report?
No legally binding agreement has been reached between the UK and the rest of the EU. The withdrawal agreement to set out the terms of Brexit will be an international treaty which will be legally binding. Until that is put in place there is technically no legally binding agreement which has been reached. However, both the UK government and the EU have acknowledged the political importance of this interim deal. As a result, it is very unlikely that anything which has been agreed will change. The EU has said that it will not accept any backtracking on what has been committed to.
Why is it important to have some clarity on the rights of EU citizens?
In the 12 month period following the Brexit referendum, 51,000 fewer EU migrants came to live and work in the UK as compared with the 12 months before. Whilst there are numerous factors which could have contributed to this decline, the uncertainty surrounding EU migrants’ rights following Brexit does appear to have played a part in making the UK a less attractive place to live and work for EU citizens.
What will be the rights of EU citizens living and working in the UK before Brexit?
EU citizens, who are living in the UK at the date of the UK’s withdrawal from the EU, will be entitled to remain in their host state even if they have not acquired Permanent Residence by that date (“Right Holders”) as though free movement law still applies. Therefore someone who is working can continue to stay in the UK until they accumulate 5 years of legal residence. They can then apply for settlement. A new form of Residence Permit will be issued for those this applies to.
Employers who have EU nationals working for them up to and including the date of the UK’s withdrawal from the EU can continue to employ them beyond Brexit. That is good news for UK employers who can continue to attract employees to come to the UK right up to the point of Brexit based on an assurance that they will be able to stay in the longer term.
What about EU citizens who wish to come to the UK after Brexit?
EU citizens who wish to come to the UK to live and work following Brexit does not currently have the same guarantees. EU migrants who are not living in the UK at the time of Brexit do not fall under the ambit of the agreement that was made in December.
Unhelpfully, it is still unclear what the position will be in relation to EU nationals who wish to come to work in the UK post-Brexit. This will cause concern for employers, who may find themselves with a particular skill shortage in their organisation if they are unable to access the EU labour market. EU citizens will be subject to the same points-based immigration rules that currently apply to non-EU citizens, unless new rules are introduced. This system is generally regarded as expensive and lengthy and it does not cater for lower skilled workers.
Will there be a “cut-off date” for securing transitional rights for EU citizens?
There will be no pre-Brexit “cut-off” date (as had been alluded to previously) in relation to EU nationals.
EU citizens will acquire the rights agreed upon in the negotiations so long as they are residing in the UK and exercising treaty rights on the date of the UK’s withdrawal from the EU (that is no earlier than March 2019).
What will be the rights of family members of those who acquire rights under the interim agreement?
Direct family members (such as spouses) of Right Holders will be entitled to join the Right Holder in their host state, even if the direct family member did not live in the host state at the date of the UK’s withdrawal from the EU.
Extended family members of Right Holders (such as unmarried partners) will not acquire the same entitlements, and will be subject to the domestic immigration rules of the host state. This will mean that unmarried partners of Right Holders living in the UK will be subject to certain financial requirements if applying to come to the UK.
While this doesn’t impact employers directly, it is important to understand the rights of EU citizens in the UK post-Brexit as part of a bigger picture.
What does this mean for employers?
Overall, this should come as welcome news for employers and should provide some comfort in relation to the status of EU workers living in the UK. It should allow EU nationals to have some confidence about the fact that they will be able to remain in the UK following Brexit.
However, uncertainty still remains in relation to EU workers coming to the UK after Brexit. Until such time as the UK government is able to confirm if, and how, UK employers will be able to access the EU labour market following Brexit, the recurring theme of uncertainty will remain.
Elaine McIlroy (firstname.lastname@example.org) is a Partner in the Employment, Pensions and Immigration Team at Weightmans LLP and is based in Glasgow.
If you have any questions about the Government’s proposals or any other aspect of workforce planning in the context of Brexit, please do not hesitate to contact Elaine for expert employment and immigration law advice. Alternatively, please get in touch with your usual Weightmans advisor.