Living and Working in the UK after Brexit – What we know so far

published on october 10, 2018 / reading time approx.: 5 minutes  
 

The ongoing rights of EU citizens in the UK and reciprocal rights of British citizens in the EU has been one of the key discussion points during the Brexit withdrawal negotiations. It is, along, with the Northern Irish border issue and how much the UK owes the EU, one of the three key “divorce” issues still to be determined.
  
 

 

Citizens’ rights   

On 21 June 2018 the UK Government announced further details about its proposals in a Statement of Intent on citizens’ rights and the establishment of a so-called EU Settlement Scheme.  As with all aspects of Brexit, however, this would only come into force if and when the UK and EU agree an overall Brexit deal.  The Home Office’s current proposals as regards the EU Settlement Scheme are as follows:
  • There will be an “implementation period” running from the date of the UK’s exit from the EU on 29 March 2019 to 31 December 2020. During this time, free movement will continue between the UK and the EU with EU citizens and their families who are legally residing in the UK continuing to be able to do so.
  • EU citizens who have resided in the UK lawfully for five years by 31 December 2020 can make an application for “settled status” under the EU Exit settlement Scheme so as to be able to stay in the UK indefinitely.  This means that they will be free to live in the UK, have access to public funds and services and go on to apply for British citizenship. The Scheme is expected to be launched later this year and will be fully open by 31 March 2019.
  • Children of those EU Nationals applying under the EU Exit Settlement Scheme will be able to apply at the same time as their parents. Those born in the UK to parents with EU Exit settled status will be born British.
  • Those EU citizens in the UK who have fewer than five years residency in  the UK by 31 December 2020 will be entitled to apply for  “pre-settled  status” until they acquire the necessary five years to obtain settled status. Such individuals will also be able to continue working, studying or being self-sufficient and will have the same access to public funds and services for five years from the date they get pre-settled status.
  • Family members who are living with, or join EU citizens in the UK by 31 December 2020 will also be able to apply under the EU Exit Settlement Scheme (usually after five years in the UK). Close family members (including spouses, civil and unmarried partners, dependent children and grandchildren) will be able to join EU citizens in the UK after 31 December 2020 where the relationship existed on 31 December 2020. All other family members will be excluded from protection after 31 December 2020.
  • The deadline for submitting applications for EU Exit settled and pre-settled status shall be no more than six months from 31 December 2020 (30 June 2021). For family members who join EU citizens in the UK, the deadline to submit their applications shall be three months after their arrival or no more than six months from 31December 2020, whichever is the later.
  • Any applicant refused status under the EU Exit Settlement Scheme will still be able to assert their free movement rights and will retain their right of appeal against any restriction of those rights before and during the implementation period.
  • The application process is expected to be an online application process accessible from any computer, laptop, smartphone or tablet that has internet access. It is expected to be less onerous than an application for permanent residence and to cost £65 for those aged 16 and over and £32.50 for those under 16. 
  • A dated and signed letter from an employer confirming the duration of employment of an EU national will be valid evidence to support an individual’s application.
  • In summary, individuals who make a valid application will be granted either settled or pre-settled  status, unless:
    • they weren’t resident in the UK or had the family relationship referred to above by 31 December 2020; or
    • they are refused on the grounds of their serious criminal convictions or for security reasons or fraud.

 

The proposed scheme does not currently apply to citizens of Iceland, Lichtenstein, Norway, and Switzerland, whose right to remain in the UK after Brexit is still being negotiated. It is likely that an agreement will be reached and the scheme will also apply to citizens of those countries.
 

What if the UK leaves the EU without a deal? 

The full Settlement Scheme is yet to be incorporated into UK law and, as above, is still subject to overall agreement by the EU on citizens’ rights, many issues of which are still being debated. However, the UK government is expected to confirm that even in the event that no deal is reached, EU citizens and their families will still be entitled to stay in the UK under the Settlement Scheme. Leaked Cabinet papers in August 2018 have indicated that in the event of a no-deal Brexit, the Government proposes to “take the moral high ground” and allow EU citizens to stay in the UK. Although not an official announcement and with little detail to go on, this is in accordance with ministerial promises since the referendum: EU citizens already here will be able to stay.
 

UK Immigration

The Government’s Brexit White Paper published in mid-July after the Cabinet’s Chequers meeting sets out an intention to preserve free movement for skilled workers in some form, however, no official statement has yet been made as to its proposals.
 

One indication of the UK Government’s thinking about how the UK will manage its borders post-Brexit was contained in a leaked Home Office paper in September 2017. Some of the key proposals were:
  • Limiting the number of EU citizens able to come to the UK to undertake low-skilled work;
  • A requirement for EU citizens to demonstrate proof of a job offer in the UK prior to entering for the purpose of work;
  • Limiting the duration of work visas to two years unless the individual is performing a highly-skilled role and has an employment contract lasting longer than one year
  • Introducing an income threshold for those wanting to come to the UK as “self-sufficient”
  • A requirement for certain travellers to the UK to obtain an Electronic Travel Authorisation before they travel. This would operate in a similar way to the US ESTA system and allow the screening and vetting of travellers before they travel to the UK.
      

Over the past few weeks, the EU’s and the UK Parliament’s response to the Chequers’ plan has not been positive. Within the UK, both those who oppose Brexit and those who want a clean break are unhappy with what they see as a compromise deal, and the EU’s response is that the trade parts of the plan are currently unacceptable
 

No preference for EU workers post-Brexit

More recently, a report by the Migration Advisory Committee (an independent public body which advises ministers on migration issues) recommended in a report published on 18 September 2018 that the cap on the number of highly-skilled migrants coming to the UK (currently 20,700 non-EEA migrants per year) should be scrapped, the rationale being that these workers make more of a positive contribution to public finances.  As part of this process, the report also suggested that EEA workers should be subject to the same visa rules as other migrants, meaning the existing points based system for non-EEA migrants, known as “Tier 2”.
 
With regards to low-skilled workers, the Committee said that it was not convinced that there needs to be a work route for low-skilled workers from the EU to fill jobs in industries such as catering or hospitality.
 
The Cabinet has, on 25 September 2018 agreed with the recommendations in principle, being in favour of “a system based on skills rather than nationality”. However, this “agreement” does not constitute a firm decision and there may still need to be some “light-touch migration” rules for EU nationals as part of any wider Brexit trade deal.
 

What’s next?

Against the backdrop of the current political uncertainly, the detail as to how the UK will manage its borders post-Brexit may not become clear for some time. With now only a few months to go until the UK leaves the EU, the reality of life and work in a post- Brexit UK is, in many ways, still to be determined. Developments in the coming weeks and months will be critical and shall be closely monitored.

 

 Contact

Charlotte Bateman

Senior Associate

+44 12 1227 8963
+44 12 1227 8999

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