EU nationals remaining in the UK after Brexit

21 January 2019

On 26 June 2017, the UK Government published a 59 point white paper setting out its proposed rules to allow EU citizens currently living and working in the UK to remain in the UK after Brexit (EU citizens living in the UK will continue to enjoy the rights they have under EU Treaties until Brexit). This is the first stage in the negotiating process with the EU over this vital issue.

Settled status

From the date of Brexit, the new rights for EU citizens living in the UK are to be based on the concept of ‘settled status’. Individuals who successfully apply for settled status would be entitled to work in the UK, access all public services (including the NHS) and build up UK state pension entitlements – broadly the same rights as British citizens. Irish citizens and those from Crown Dependencies would not need to apply for settled status; the Government says it will continue to operate a common travel area with Ireland under the Ireland Act 1949. EEA and Swiss citizens will have the same rights as EU citizens, but the Government will pursue separate reciprocal agreements with the European Free Trade Association (EFTA) member states (Iceland, Liechtenstein, Norway and Switzerland).

Qualifying for settled status

EU national would need to be/have been resident in the UK at specified date (expected to be somewhere between 29 March 2017 and 29 March 2019) and have established five years' continuous and legal residence in the UK. For example, an EU national who arrived legally in the UK in 2010 could apply for settled status from 30 March 2019 (there will also be an advance application scheme for those who wish to use it).

Individuals who have not built up the five year period by Brexit day will automatically be given two year leave to remain in the UK. Before that period expires they can then apply for temporary leave to remain status until they have accumulated five years UK legal residence and can then apply for settled status. Individuals will have to pay a ‘reasonable’ fee when applying to the Home Office.

On 21 January 2019, the Prime Minister confirmed that no fee would be charged for applications.

EU nationals arriving in the UK after the specified date will not be able to establish settled status. However, they will be able to apply for a visa or immigration status under a new immigration scheme (details not yet available) and there will be a two year ‘grace period’ to do this. This effectively means that workers recruited from the EU will be subject to similar visa requirements as non-EU nationals. However, the proposals do mention “other exemptions” that the Government may create, so there may be specific fast track visa schemes for certain industries to minimise recruitment difficulties.

Reciprocal arrangements

The Government expects that UK citizens resident in other EU member states will be offered reciprocal treatment under the Brexit arrangements. EU negotiators and several other member states have already made it clear they feel the proposals do not go far enough – there is clearly much negotiating still to do. Most commentators expect the eventual arrangements for EU nationals already living in the UK to be much less restrictive if a formal Brexit agreement is negotiated.

Whatever the terms of the final arrangements, the Government continues to state that Free Movement of People will end with Brexit. Therefore, employers should consider their people issues carefully as part of their Brexit planning for different possible outcomes from the Brexit negotiations.

Read the Government’s White paper.

Read more on Brexit transition - freedom of movement

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