EU Nationals working in the UK – time for clarity

So what happens to the element of your workforce who are EU Nationals working in the UK and their families?

On 30 June 2017 the UK Government finally provided a little more clarity and announced to some degree as to how it intends to resolve the status of EU Nationals. However, the devil is going to be in the detail which we do not have and which is also still subject to negotiations with the EU.

The Government will be seeking to ensure that when the UK leaves the EU the legal status of EU Nationals living in the UK, and that of UK Nationals living in the EU, will be properly protected as it recognises and values the important contribution made by EU and other non-UK citizens who work, study and live in the UK.

On the basis that the EU will offer reciprocal treatments for UK National residents in its member states, the Government has promised to do the following:

• While the UK remains a member of the EU and until it actually leaves the EU, EU Nationals living in the UK will be able continue to enjoy the rights they have under EU Treaties.
• Following the UK’s exit from the EU, the Government states it will create new rights in UK law for qualifying EU citizens, resident here before the UK’s exit, which will be enforceable in the UK legal system and will provide legal guarantees for these EU citizens.
• All EU citizens are to be treated equally and citizens of one member will not be treated more favourably to those of another.
• The proposal states that EU citizens will have to qualify for residence status and under a completely new system which will be established under UK law as opposed to the current system of certifying the rights of EU Nationals exercising Treaty rights under EU Law.

So how will EU Nationals qualify under the new system?

• To qualify, an EU citizen must have been resident in the UK before the specified date. They must have completed a period of five years continuous residence in the UK before they apply for settled status, at which point they must still be resident. Therefore, EU Nationals will have to make a formal application.
• EU citizens, who arrived and became resident before the specified date but who have not accrued five years continuous residence at the time of the UK’s exit, will be able to apply for temporary status in order to remain resident in the UK until they have accumulated five years, after which they will be eligible to apply for settled status.
• EU citizens who arrived after the specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status.
• Family dependants who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after five years (including where the five years falls after the UK’s exit), irrespective of the specified date. Those joining after the UK’s exit will be subject to the same rules as those joining British citizens, or alternatively, to the post-exit immigration arrangements for EU citizens who arrive after the specified date.

What is the “specified date”?

The “specified date” is to be “no earlier than the date the formal Article 50 process for exiting the EU was triggered i.e. the 29 March 2017, and no later than the date of the UK’s withdrawal from the EU”. However, no certainty is given in relation to this as the Government has stated that the “specified date” will be negotiated and will depend on the nature of the reciprocal arrangement the EU is prepared to give.

Assurances given so far:

• The administrative process which EU Nationals will be made to follow to obtain their new rights under UK law will apparently be modernised and kept, as much as possible, smooth and simple and qualifying EU Nationals will be given adequate time to apply.
• The eligibility criteria may be “tailored” so that, for example, those people who are currently required to have comprehensive sickness insurance because they are not in employment/business may not be required to have held this.
• Qualifying individuals will be granted settled status in UK law (indefinite leave to remain pursuant to the Immigration Act 1971). This means they will be free to reside in any capacity and undertake any lawful activity, to access public funds and services, and to apply for British citizenship.

Provided EU member states give reciprocal rights in relation to benefits and pensions, the Government has stated its intention to continue to allow qualified EU Nationals as well as EU citizens arriving before the specified date, but who have not yet completed five years’ residence at the time of the UK’s exit, to have access to UK benefits on the same bases as UK Nationals currently have under domestic law. The Government will seek to enter similar arrangements with Iceland, Liechtenstein, Norway and Switzerland (the European Free Trade Association (EFTA) States) on a reciprocal basis.

• The existing rights of EU citizens and UK Nationals have to export UK benefits to the EU will be protected for those who are exporting such UK benefits on the specified date, including child benefit, subject to on-going entitlement to the benefit.
• The UK will continue to export and uprate the UK State Pension within the EU.
• The UK will continue to aggregate periods of relevant insurance, work or residence within the EU accrued before exit to help meet the entitlement conditions for UK contributory benefits and State Pension, even where entitlement to these rights may be exercised after exit.
• The UK will seek to protect the healthcare arrangements currently set out in EU Social Security Coordination Regulations and domestic UK law for EU citizens who arrive in the UK before the specified date and for UK Nationals living in the EU before the specified date;
• The UK will also seek to protect the ability of individuals who are eligible for a UK European Health Insurance Card (EHIC) before the specified date to continue to benefit from free, or reduced cost, needs-arising healthcare while on a temporary stay in the EU. The UK will seek an ongoing arrangement akin to the EHIC scheme as part of negotiations on our future arrangements with the EU.
• The UK will ensure qualifying EU citizens who arrived in the UK before the specified date will continue to be eligible for Higher Education (HE) and Further Education (FE) student loans and ‘home fee’ status in line with persons with settled status in the UK. Such persons will also be eligible to apply for maintenance support on the same basis they do now.
• Further, to help provide certainty for EU students starting courses as the Government implements the UK’s exit (including those who are not currently living in the UK), the UK has already confirmed that current EU students and those starting courses at a university or FE institution in the 2017/18 and 2018/19 academic years, will continue to be eligible for student support and home fee status for the duration of their course. It will also ensure that these students also have the right to remain in the UK to complete their course.
• The UK will seek to ensure that citizens with professional qualifications obtained in the EU27 prior to the UK’s withdrawal from the EU will continue to have those qualifications recognised in the UK (and vice versa).

The Government states that EU citizens currently in the UK should not apply for EU documentation under the EEA Regulations to prove they are exercising Treaty rights or the right of permanent residence in order to secure their status post-exit. They state EU citizens should apply for their new British settled status before the UK’s exit from the EU once the new process has been implemented.

However, we disagree with the above, especially where an EU National has been living in the UK and has been economically active for a number of years. We are of the view that EU Nationals should apply for permanent residence or a document certifying residence to guarantee their rights. The reason for this is that, as we have been successful in numerous cases (some of which have been complex) in securing permanent residence for our clients swiftly (the maximum time has been 3 months), these people have also been able to apply for Citizenship. There is a possibility of ensuring certainty in an EEA National’s future sooner rather than later.

I would advise our clients who are business owners and employers to encourage their employees to apply as quickly as possible, thereby minimising the numbers of employees whose eligibility for a document allowing them to remain indefinitely in the UK under any new rules to be tested at a later date and avoid any uncertainties. The above is an indication of how the Government intends to treat EU Nationals in its bid to effect an exit from the EU. These proposals are subject to ongoing negotiations and subject to the EU giving reciprocal status and benefits to UK Nationals living in the EU, and as yet, nothing has been formally decided.

In its concluding remarks, the Government has stated that EU Nationals will require documentation to prove their status in the UK as this will help to prove their right to live and work here as well as being able to access their right to benefits and public services. It goes on to state that a streamlined application process will be established prior to the UK’s exit so that people can apply for their new status.

The Government’s newly stated aim is that, whilst there may not be free movement as we know it, migration between the UK and EU will continue. It claims to understand and recognise the fact that EU Nationals make a contribution to the UK economy and society and hopes that the UK will retain its ability to attract global talent. It is apparently “considering a range of options” as to how they will be able to facilitate EU migration in an effort to enable businesses to plan and prepare. However, for the time being, a considerable amount of uncertainty remains.

It seems clear that the current points based immigration rules which non EU Nationals wishing to come and work in the UK are subject to may be adapted to facilitate EU migration to the UK. However, the points based system is subject to change and limitations imposed by the Government and its quango the Economic Migration Subcommittee. This is far removed from the current system of Freedom of Movement as we know it. This in turn may mean that there are additional cost implications for companies in having to apply for work permits for not only non EU migrants but now also for EU migrants including additional red tape. We wait with baited breath for further announcements from the UK Government and hope that representations from Stakeholders such as the London Chamber of Commerce will be considered by the Government.

For further information regarding this topic or any other immigration matters please contact any member of the Edwin Coe Immigration team.

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