Brexit – Transitional Provisions in the Balance

With less than six months to go until the UK leaves the EU (and, possibly, enters a transitional period that will last until January 1, 2021) it is worth taking stock of the EU workforce's position in the UK, both in the event that a deal is reached and in the less desirable scenario in which the UK leaves with immediate effect and without transitional provisions on March 29, 2018.

The picture for employers is radically different depending on the success or failure of the ongoing negotiations between Theresa May’s government and the EU.

If the UK and EU do reach an agreement on or before March 29, 2019, then we can be relatively confident about how EU nationals who are resident in the UK prior to the end of the transition period will be treated. Both parties have already agreed on the approach and have taken steps to implement what is being called the EU Settlement Scheme.

Under this scheme, EU citizens (and their families) who are already working in the UK prior to the end of the transitional period will be entitled to stay and continue to work thereafter. Citizens will be able to apply for “settled status” if they have lived in the UK for more than five years at the time of making the application – that is, the right to remain in the UK for as long as they wish, provided they are not absent for a period of five consecutive years. Citizens who have lived in the UK for less than five years will be able to apply for “pre-settled status” which will allow continued residence in the UK until they have been resident for five years, at which time citizens will be able to convert their “pre-settled” status into “settled status.”

A similar system to the one used in the UK will be implemented across the other EU member states, allowing UK citizens to apply for either settled status or pre-settled status. The requirements of these systems will effectively mirror those described above. For UK citizens residing in Ireland, the Common Travel Area (CTA) facilitates free movement for British and Irish citizens between those nations, as well as the Channel Islands and the Isle of Man. The rights provided by the CTA will continue to apply after Brexit and so there will be no need for UK citizens to apply for any special immigration status or otherwise to protect their rights.

There are, of course, nuances to the EU Settlement Scheme (and, unfortunately, a cost of £65 per application in the UK). By and large, though, it will provide a level of certainty and reassurance for EU workers in the UK and employers alike.

The wrench in the works is the fact that the UK and EU do not currently agree on the full substance of the rest of the withdrawal agreement. Particularly, the Irish border is a significant sticking point, as is the future trade relationship between the parties. If there is a failure to reach agreement on the full text of the withdrawal agreement, then both the EU’s and the UK’s position is that "nothing is agreed until everything is agreed." That would suggest that all of the agreed transitional provisions, including those designed to protect EU citizens’ rights, will fall away.

The position in such circumstances is much less clear. Frustratingly, the best option right now is for employers to reassure their EU workforce as far as they are able to do so and keep a close and beady eye on the ongoing negotiations abroad and the Parliamentary wrangling at home.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.