When the UK leaves the EU on 29 March 2019, the UK and the EU negotiating parties have agreed that EU citizens who arrive in the UK before the end of the implementation period on 31 December 2020 will be able to continue to live and work here as they can now.
Free movement will no longer apply after 30 December 2020 and EU citizens will be required to apply for either settled status or pre-settled status via the Home Office EU settlement scheme. Details of the EU settlement scheme was made available on 21 June 2018.
Citizens of the Republic of Ireland will be unaffected and permitted to remain in the UK due to existing arrangements between the UK and the Republic of Ireland outside the EU freedom of movement.
The government has previously confirmed that workers’ rights will be protected by the European Union (Withdrawal) Bill, which will convert existing EU law into UK law. It’s not anticipated that many changes will be made to UK employment law, at least not in the short term.
There are three eligibility requirements for EU citizens applying for settled status. They must:
EU citizens who arrive in the UK before 31 December 2020 but have not been living continuously in the UK for five years will be able to apply for pre-settled status before switching to settled status once they have been in the UK for five years. The second application will be free of charge.
Continuous residence is where a person has not been outside of the UK for more than six months in total in any 12 month period. There is no restriction on the number of absences a person can make from the UK.
A single period of absence of more than six months but less than 12 months is permitted where this is for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.
Any period of absence in relation to compulsory military service is also permitted.
The Home Office has published details of its new EU settlement scheme. The scheme will open using a phased approached late in 2018 and will be fully operational by 30 March 2019.
Employees are advised not to apply for indefinite leave to remain (ILR) under the current system. The current system for making ILR applications is complex and lengthy, and it is intended that the EU settlement scheme will be considerably simpler.
Employees therefore do not need to do anything until this system is live in late 2018 and will have until 30 June 2021 to apply for settled status.
The Home Office advises that the application will be quick, easy and user friendly and completed in four steps:
Supplementary evidence may include: annual bank statement, a signed and dated letter from an employer or a signed and dated letter from an accredited college, TV licence, confirmation of doctor appointments etc.
If an applicant has been living in the UK for five years or more, they will be granted settled status. If they have been living in the UK for less than five years, they will be granted pre-settled status which can be switched to settled status free of charge on accrual of five years.
Individuals who already have valid permanent residence or ILR documentation will be able to exchange it for settled status, free of charge.
It is expected that the decision process will take two to three weeks.
EU citizens who have been naturalised as British citizens will be unaffected by the UK’s exit from the EU and will be permitted to retain their citizenship.
EU citizens who have held a document confirming permanent residence for 12 months or more, are eligible to apply for naturalisation as a British citizen. EU citizens considering naturalisation will need to ensure that the rules of their home country permit dual nationality, and whether any of their family members may be affected by them obtaining British citizenship.
A naturalisation application costs £1282 for adults and £973 for children.
EU citizens who have legitimately obtained ILR will be guaranteed settled status once the new system is in place and therefore an application for naturalisation may be unnecessary.
The UK remains a member of the EU until March 2019, and the rights of EU citizens to live and work in the UK are currently unaffected until 30 December 2020. Therefore, existing plans to recruit and employ individuals from within the EU currently remain unchanged.
There is no need for your EU staff members to request a reconsideration now as the government has confirmed that until the UK exits the EU, EU citizens that are resident in the UK will continue to benefit from their existing rights to live and work here. Following the UK’s exit from the EU, the individual will need to make a new application under the EU Settlement Scheme.
However, if the application is refused for a seemingly straightforward reason (under the current system, many applications fail due to the applicant’s failure to provide the correct documentation) an applicant would be well advised to request a reconsideration now. There will be a simple process for exchanging an ILR document for a settled status document and this will be free of charge.
The technical document submitted by the government to the European Commission as part of the ongoing exit negotiations makes clear that those applying to remain in the UK following Brexit will not have their applications refused on minor technicalities, and caseworkers considering settled status applications will exercise discretion where appropriate. Therefore, it is possible that EU citizens who have had an application for ILR turned down may nevertheless be successful under the EU Settlement Scheme.
Unsuccessful applicants will also be given a statutory right to appeal against the decision, in keeping with the existing right under the EU Free Movement Directive.
EU citizens who have been naturalised as British citizens will be unaffected by the UK’s exit from the EU and will be permitted to retain their citizenship. EU citizens who hold other residence documents, such as a permanent residence document or residence card, will need to apply for settled status under the new system. The government has agreed that the process will be streamlined for such applicants and documents will be converted free of charge.
Family members who are living with, or join, EU citizens in the UK by 31 December 2020 will be able to apply for settled status, after they have accrued five years' continuous residence.
Close family members (i.e. spouses, civil and unmarried partners, dependent children and grandchildren, and dependant parents and grandparents) will be able to join EU citizens following the UK's exit from the EU, where the relationship existed on 31 December 2020.
Children born to or adopted by an EU citizen after being granted settled status, will automatically become a British citizen if they’re born in the UK. You will not need to apply for settled status on their behalf.
Family members who become related to an EU citizen after the withdrawal date (other than children born or legally adopted after that date), will be subject to the requirements of UK law i.e. their spouse or civil partner must meet a minimum income threshold, currently £18,600.