Brexit and the Right to Stay: how will it work?

Charlotte Ashton

Brexit and the Right to Stay: how will it work?

Immigration is already one of the most contentious issues to stem from the Brexit negotiations. Ward Hadaway Manchester break down the information employers need to know.

With the rights of EU workers not yet clarified and generating significant uncertainty, businesses who rely heavily on EU workers are finding it difficult to plan for the future.

Our colleague Flora Mewies looked at the situation surrounding EU workers in the previous issue of BQ.

Since then, the Government has published its policy paper, "Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU", which sets out the Government's proposals on the post-exit position of EU citizens in the UK.

What do businesses need to know?

Businesses must be aware of the latest rights of both their employees, and themselves. As this is an area which will be subject to change over the coming months and years, businesses should take care to ensure they are proactive in dealing with the changing rights of their workforce. 

The policy paper gives an indication of how the Government intends to deal with EU workers in the UK now and arriving prior to the UK's exit from the EU. We now know that there will be a ‘grace period’ (yet to be officially defined, but potentially up to two years) during which all EU workers must apply for the right to live and work in the UK.

Right now, it isn’t necessary to apply for documents to prove an EU worker is exercising existing rights – something that had caused issues with individuals finding it difficult to obtain a residence card due to a lack of comprehensive sickness cover.

The Government intends to specify a cut-off date for EU workers arriving in the UK to apply for either settled status, or temporary permission to stay with a residence document – with no immigration conditions imposed on EU workers at this date.

How will these changes affect workers arriving before the cut-off date?

EU workers in the UK prior to the currently unspecified cut-off date will be able to apply for settled status or permission to stay with no immigration conditions placed upon these applications.

Following Brexit, those workers already in the UK by the cut-off date will have the grace period to apply for settled status or permission to stay and a residence document, if they have not done so beforehand. These workers will, at the end of the grace period, be classed as ‘settled’ or granted a temporary residence permit, which would allow them to apply for settled status after five years, with no further conditions imposed.

What happens to workers arriving after the cut-off date?

New, as yet unannounced rules will dictate the rights of workers arriving after the cut-off date. Those workers arriving in the UK after the cut-off date but before Brexit will have to apply for temporary permission to stay during the grace period, but what this will involve and their rights thereafter are still currently unknown.

Those workers arriving entirely after Brexit will be subject to whatever immigration conditions are in force at the time.

It is not clear whether these workers will follow the current points-based system or a new system.

What do these changes mean for employers?

Although some details are materialising, the key factors are still yet to be fully defined. Amongst these concerns, however, there are some preliminary actions that employers can take now in preparation.

Employers should encourage staff to apply for settled status or temporary permissions before the official grace period. Businesses must then note the expiry date of employees’ permissions to obtain current evidence of their right to work. This also applies to any new staff up to the specified date.

Be aware that personnel arriving after this date will become subject to new rules on their right to stay in the UK. This effectively creates two tiers of EU nationals: those with the right to be in the UK without any conditions being applied, and those who will have new conditions under the new scheme. Employers must to be vigilant when obtaining proof of the right to stay and monitoring the expiry date of these permissions.

When might we see these outstanding details?

The Home Secretary has commissioned the Migrant Advisory Committee to examine the role EU nationals play in UK economy and society by 18 September 2018 – though its plans for interim reports should paint an incremental picture for employers.  

The Committee will publicly call for evidence, and employers who rely heavily on EU workers should respond to put their view across. Employers should also seek support from any industry organisations and bodies to ensure industry-wide issues are presented to the Committee.

Stephen Robinson is a Partner and Charlotte Ashton a Solicitor in the Employment team at law firm Ward Hadaway's Manchester office.