During the course of negotiations the position seems to have changed from week to week but, subject to a final agreement being reached with the EU, employers can start to plan based on the recently reached agreement.
What has been agreed?
Essentially, when the UK leaves the EU on 30 March 2019 there will be 3 categories of EEA nationals:
1. Those who have lived in the UK for 5 years and are eligible for settled status;
2. Those who have not lived in the UK for 5 years and/or are not eligible for settled status; and
3. Those entering the UK after 30 March 2019.
As yet, there is no indication as to the rules that will apply to those in the third category so employers may wish to focus on the first two categories instead.
Those eligible for Settled Status
Under the current law, once an EEA national has lived and worked in the UK for 5 years they automatically acquire a right of permanent residence. They can apply to the Home Office for confirmation of this right, in the form of a Permanent Residence Card. Obtaining a Permanent Residence card is also the first step in becoming a British national.
Once the UK leaves the EU, Permanent Residence will cease to exist and there will be a 2 year window for individuals to apply for “settled status”. This will be compulsory for anyone looking to remain in the UK long term, including those with Permanent Residence. Anyone who has already acquired British nationality will not need to apply.
The Home Office have said that the settled status application will be an online application with minimal questions and applications will be processed within a couple of weeks, however, no further details have been provided. We anticipate that the process will be much easier for employees who already hold Permanent Residence documents.
Those not yet eligible for Settled Status
Any EEA national who is already in the UK, in line with the current rules, on 29 March 2019 but who has not yet become eligible for settled status, will be able to remain in the UK lawfully until they can apply for settled status.
There are very few details about what temporary status these individuals will be given but it is very likely to involve some form of registration process.
What can employers do now?
Since the EU Referendum we have encouraged employers to maintain a dialogue with their employees, and those conversations are even more vital now. Since the vote many EEA nationals will have taken steps to apply for Permanent Residence and/or British citizenship, and it is important that employers understand their workforce’s current status.
Our recommendation is that employers speak to staff, and review their own records, so they can identify which of the following categories they fall into:
1. Employees who have become British nationals;
2. Employees who have documents confirming their right of Permanent Residence;
3. Employees who do not have documentation, but will likely be eligible for settled status in March 2019; and
4. Employees who will need a temporary status.
As employers have an obligation to verify their employees' right to work in the UK, it will be necessary to take additional steps once the UK leaves the EU and what is required will depend on which category an employee falls into.
Employers can also begin to consider what support, if any, they wish to offer to staff in the interim period before the UK leaves the EU. For example, an employer may want to provide some support to staff looking to apply for Permanent Residence now, since it will make the settled status application easier and offer more certainty to all concerned.