As we approach ‘exit day’ from Europe on October 31, 2019, it is vital that UK businesses consider the extent to which they rely on, and benefit from, employing EU citizens.
Olivia Bailey, solicitor in Harrison Drury’s employment and regulatory team, outlines what steps may be taken to protect these employees.
Freedom of movement
Under EU regulations, citizens of the EU (including Iceland, Norway, Liechtenstein or Switzerland) and their families are entitled to exercise the right of freedom of movement. EU citizens are entitled to enter and live in any EU member state, outside their country of nationality, for three months without any restrictions.
If an individual wishes to reside for longer than three months, they must either engage in work or be self-employed, or be self-sufficient or enrolled in study.
EU Settlement Scheme
The UK Government has confirmed that EU citizens and their family members who are resident in the UK before 11.00pm on October 31, 2019, will be eligible to apply to the EU Settlement Scheme by at least December 31, 2020, to obtain UK immigration status allowing them to remain in the UK.
EU citizens who have lived in the UK for at least five years can apply for indefinite leave to remain (ILR) with ‘settled status’. Those with less than five years residence, but who would otherwise be entitled to ILR, can apply for ‘pre-settled status’ allowing them to complete five years residence to be entitled to ILR.
What can employers do?
Employers should reflect on how many EU citizens are employed in their business and whether employees are likely to be aware of the changes.
As a starting point, you should reassure your employees that you will support them through any necessary application process.
Although it is the individual’s responsibility to take the necessary action under the EU Settlement Scheme, it is in both parties’ interest to provide support and guidance as required.
On a more practical level, you may wish to consider providing employees with time to seek specialist assistance or allow them to complete an application within working hours. You may also be able to work with other businesses to provide guidance and share presentations to inform employees of any changes to their status.
Otherwise, you may simply wish to confirm that you will help them as far as possible or offer to put the individual in touch with specialists within your network.
It is important to note that EU citizens are not required to inform their employer of whether an application has been made, or of the outcome.
Exiting with a deal
The EU Settlement Scheme forms part of the Withdrawal Agreement, likely to be implemented in the event that the UK leaves the EU with a deal. Under the Agreement, there will be a transitional period between exit day and December 31, 2020, during which EU nationals wishing to move to the UK can do so under the principle of freedom of movement.
With a deal, EU citizens living in the UK on or before December 31, 2020 will have until June 30, 2021 to apply for immigration status under the EU Settlement Scheme.
Exiting with no deal
In the event of no deal, individuals living in the UK on exit day will need to apply under the EU Settlement Scheme by December 31, 2020.
Without a deal, EU citizens who move to the UK after exit day and wish to stay past 2020 will need to apply for a period of 36 months’ leave to remain under the new European Temporary Leave to Remain Scheme (Euro TLR).
This scheme is designed to give employers greater confidence regarding the status of employees from the EU who move to the UK after exit day and before the new points-based immigration system is rolled out in January 2021.
If you have any further queries regarding the EU Settlement Scheme and the impact of Brexit on your employees, or to seek specialist legal advice from Harrison Drury’s employment and regulatory team, please contact Olivia Bailey on 01772 258321.