Legal – How will Brexit affect EU workers?
The exact date the UK will formally exit the EU is still to be decided, although 29 March 2019 is the date many are working towards, with the 21-month transition period provisionally running to 31 December 2020.
Previously, the UK’s position was that anyone coming to the UK from the EU following Brexit would be entitled to stay in the UK on a temporary basis and remain subject to immigration controls at the end of the transition period. However, on 28 February 2018, the UK government announced that EU nationals who arrive in the UK after Brexit (but before the end of the 21-month transition period) will be able to stay in the country permanently.
This is good news for employers, especially those in sectors that rely on EU talent. However, this recent, and arguably overdue, change may be too little too late for many. Because of the uncertainty affecting EU nationals in the UK since the 2016 referendum, many companies have not had the chance to adequately prepare for the sudden and dramatic departure of its EU staff and, as a result, they have already suffered the loss of valuable talent.
It’s difficult to predict whether this latest government announcement will give EU nationals enough confidence to remain in the UK and pursue their careers, or whether employers will need to start pursuing new domestic talent pipelines.
Settled status vs indefinite leave to remain
EU nationals who arrive in the UK before Brexit will be able to apply for settled status, allowing them to remain in the country permanently, after accruing five years’ residence. Applications for settled status are not yet open, but there is nothing to stop EU nationals already in the UK from applying for permanent residence now under the current system.
EU nationals who arrive after Brexit, and during the transition period, will be subject to a registration system and will only have the ability to apply for indefinite leave to remain (ILR) – as opposed to settled status – after five years’ residence.
The main difference between settled status and ILR is that a holder of ILR may lose their status if they are absent from the UK for a period of two years, whereas a holder of settled status will not lose their right to remain in the UK until they been absent for five years. It remains to be seen whether the government intends to align the two procedures more closely. However, if unchanged, we can expect to see more EU nationals trying to establish themselves in the UK before Brexit to gain settled status, rather than pursuing the more restrictive ILR route.
Whether an EU national is applying for settled status or ILR, as things stand, they can include family members on their application. Where the length of residence in the UK differs between family members, it is anticipated that they will be able to apply together, with the individual documents issued remaining consistent with their respective length of residence.
Non-EU national family members will remain protected in the same way as EU national family members in the UK. An EU national can sponsor both close and extended family members to live in the UK where those family members are not EU nationals themselves. Children born after Brexit to EU families resident in the UK before this will also be covered.
It is anticipated that a new immigration framework will be implemented post-Brexit, which will be designed to facilitate migration between the EU and the UK and to support the UK economy in accessing the skills it needs. In the interim, employers should keep an eye on, and remain reactive to, the risk of EU nationals leaving UK businesses.
Helena Rozman is an associate at Dentons