EU worker rights post-Brexit
Date: January 15, 2018 by IDU
The issue of EU worker rights post-Brexit is a contentious one. There has been a lot of uncertainty for EU workers following the UK’s decision to leave the EU and pressure on the both sides of the channel to set out detailed plans for EU worker rights in the UK and for those UK workers in the EU.
The situation is still far from clear and may well change depending on the course that the negotiations take, but at the time of writing the latest proposal has not been well received with a number of MEPs threatening to block any Brexit deal unless EU citizens are guaranteed the same rights post-Brexit as they currently enjoy.
As things stand at the moment, there is no change to the existing position. EU nationals and those from Switzerland, Norway, Iceland and Liechtenstein all have the right to live and work freely in the UK. EU workers have the same access to benefits as UK citizens and can bring family members to the UK regardless of their nationality. Those family members also have the right to work here.
Post-Brexit it is likely that all existing EU workers in the UK will have to apply for permission to work in the UK. It is further proposed that EU workers in the UK have a two year grace period after Brexit to make their applications. However, this period may need to be extended given that, if all EU nationals currently in the UK apply for this status, the Home Office would need to process well over 4,000 applications per day.
The government has stated that EU worker rights will be determined with reference to a ‘specified date’ – which at the time of writing (September/October 2017) has not been specified.
- The earliest possible date will be 29 March 2017 when Article 50 was triggered (the ‘trigger date’).
- The latest date will be 29 March 2019 when the UK formally leaves the EU (the ‘leave date’).
EU worker rights will depend on whether they are working in the UK prior to the ‘specified date’ or arrive after it.
- Those who have been working in the UK for five years before the ‘specified date’ (whatever that eventually may be) will be able to apply for a new settled status in the UK. This means that they will have the right to live and work in the UK indefinitely. They will have the same benefits as they do now, however even if an EU worker already has a Permanent Residence card they will still have to apply for the new status (although it is likely that such an application for settled status will be quicker than if they do not have the card).
- EU workers who have been working in the UK for less than five years before the ‘specified date’ will be allowed to apply for settled status if they complete the five year requirement during the two year grace period after Brexit. If they still have less than five continuous years in the UK they can apply for temporary status. This will be long enough to allow them to remain until they have completed the five years and then they can apply for settled status.
- EU workers who wish to come to the UK after the specified date will be able to stay temporarily while they regularise their status but with no guarantee that they will be able to stay.
The stumbling blocks in this admittedly already complex proposition are that all EU worker rights in the UK are under the jurisdiction of the European Court of Justice and the UK government has made it clear that it will not accept that the ECJ will have any jurisdiction in the UK after Brexit. The negotiators will need to find a solution to this problem which is acceptable to both sides.
The second major stumbling block appears to be over the rights of family members of EU citizens arriving after the specified date. Unlike the present situation, family members will not have the automatic right to join an EU worker in the UK, even where the EU worker has established settled status, unless the family member joined the EU worker prior to the ‘leave date’.
Family members of EU workers will be required to apply to come to the UK. So, as would be the case with family members of UK nationals; if applicable, the same rules as to meeting the minimum income requirements and demonstrating the ability to speak English would be applied.
Some EU workers have been applying for a permanent residence card in the hope that this would be enough to guarantee rights post-Brexit. However, the government’s stance is that even those EU workers with permanent residence status will be required to apply for the new settled status.
Even if they wanted to, employers cannot advise their EU employees as to what they should do, but they can at least provide those workers with the most up to date information to allow them to make an informed choice.