Increasingly over the last few months, I have been asked by clients to speak to their EEA employees about the impact that Brexit will have on their rights to live and work in the UK. I use the term ‘EEA employees’ loosely, because the attendees of these Q&A sessions are not just EEA nationals worried about the loss of their automatic right to live and work in the UK under EU law. They’re also those non-EEA national employees whose right to work stems from a EEA national family member and even British employees who are nervously keeping up with the latest developments and its impact upon their EEA partner at home.
The good news is that unlike many other aspects of your work, the right of EEA nationals working in the UK is relatively clear in both the case of a deal or no deal Brexit.
Provided your employees actively make an application to the Home Office before it’s too late, they will be able to continue to work in the UK without the need for any sponsor licence worry.
Free movement is ending
The government’s commitment to ending the free movement of people under EU law has been clear throughout the Brexit negotiations, but so has its commitment to allow those already living and working in the UK to remain doing so.
The joy of free movement was that it was an automatic right. An EEA national did not need to seek permission from anyone before moving to another member state and their passport or national ID card was evidence enough of their right to work.
By the end of 2020, this will no longer be the position and from 2021, all EEA nationals working in the UK will need to have had permission to remain in the UK granted to them by the Home Office (unless they are Irish or a British dual national).
The EU Settlement Scheme is here
To that end, a new application process has been designed and introduced for EEA nationals and their family members currently living in the UK.
The first pilot of this scheme launched last summer and a public test phase opened on 21 January 2019. I have already had a number of clients obtain settlement in just over a week under this new scheme.
What will your employees need to do?
The application process is intended to open fully on 30 March 2019 and in a deal scenario all EEA nationals and their family members must apply before 30 June 2021 to continue living and working in the UK, unless they are British or Irish.
The online application will be free and those applying will need to confirm:
- their identity and nationality: applicants with a ‘biometric’ passport or ID card will be able to do this via an Android app. Those with the wrong phone will be required to undertake the identity check at a participating location or alternatively send their passport or ID card to the Home Office;
- their residence in the UK: applicants will be asked for their national insurance number from which automated residence checks will be conducted with HMRC and DWP. If those checks show that the applicant has been continuously resident in the UK for a five-year period, the applicant will be granted settled status (ie settlement).
Where an applicant does not have sufficient data with the authorities they will be able to digitally upload additional evidence of their continuous residence; and
- that they have no serious criminal convictions.
What if they already have a permanent residence document?
Those who already have a document confirming their permanent residence will still need to apply to swap their permanent residence card to this settled status before the deadline.
What if they haven’t been here for five years?
If they have not accumulated five years continuous residence in the UK before 30 June 2021, but entered the UK before 31 December 2020, they will be granted ‘pre-settled status’. This is five years’ permission to remain in the UK which will allow the individual to continue living and working in the UK. After the required five years residence has been met, the applicant’s status will be ‘upgraded’ to settled status, provided there are no criminality issues.
What if it is a no deal Brexit?
The positon will be the same but slightly different. The EU Settlement Scheme will remain but only those EEA nationals in the UK by 29 March 2019 will be eligible to apply under it. Additionally, the deadline for applications will be 31 December 2020 and not 30 June 2021.
What can you be doing to help now?
All employers I have spoken to are keen to help their employees and the government has published an ‘Employer Toolkit’ to provide information and raise awareness to your employees about the scheme and the requirement to apply under it.
In addition, I would always recommend EEA nationals ensure that they and their family members have valid passports (we’ve all had that moment just before a holiday) and start thinking about what additional documents they have to evidence their residence in the UK, such as council tax bills and or letters from schools/universities confirming dates of study.
Finally, a word of caution, although you are free to publish and provide your employees general information that is applicable to all, it is a criminal offence to give immigration advice to an individual if you are not authorised to do so.
Now, where is that ice-cream.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of February 12, 2019.