Clarity at last? Updated guidance published on post-Brexit rights for EU workers

Following the publication of a Working Paper in June 2017, the Government confirmed that EU nationals who were in the UK exercising EU Treaty Rights before a 'cut-off date' would be eligible to apply for 'settled' or 'temporary' status depending on the length of time spent in the UK.

The principal terms of the Government's proposal are that:

• EU nationals who have been continuously living in the UK for 5 years (as at the cut-off date) will be able to apply to stay indefinitely by getting settled status and EU nationals who arrive before the cut-off date but do not have 5 years residency at the date of Brexit will be able to apply for temporary status to cover the period until they reach the 5 year threshold, at which point they will be able to apply for settled status;
• Family dependents who are living with or who join EU nationals in the UK before the date of Brexit will also be able to apply for settled status after 5 years in the UK;
• EU nationals with settled or temporary status will continue to have the same access to healthcare, education, benefits and pensions as they currently do; and
• It is expected that the offer of settled and temporary status will apply to nationals of Iceland, Lichtenstein, Norway and Switzerland so as to honour commitments in existing EEA and trading arrangements. Further, Irish nationals will not need to apply for settled or temporary status as their rights are already set out in the Ireland Act 1949.

The Government has also proposed that:

• The application process for settled and temporary status will be as streamlined, quick and user-friendly as possible. The Government intends to develop a system that draws on existing data (e.g. employment records held by HMRC) so as to reduce the amount of evidence to be submitted. Further, the Home Office will work with applicants so as to reduce the number of applications that are turned down for administrative reasons such as errors on the firm or where additional evidence could resolve an issue(s);
• EU nationals will not be required to provide biometric information as part of the application process for settled status and the fee will be no more than the cost of applying for a British passport;
• EU nationals will be able to apply for settled and temporary status before the UK leaves the EU and the scheme will be open for a considerable period post-Brexit (likely to be 2 years). The Home Office will also consider applications submitted out-of-time where there are 'good reasons' for the deadline being missed. The new online application is expected to go live in 2018;
• There will be a simple process for those who already have permanent residence (the current iteration of settled status founded on EU Treaty Rights) to exchange this right for settled status as well as a reduced fee.

Unfortunately, this new guidance remains silent on certain key issues, such as how new immigration categories will impact right to work checks and the immigration regime that will apply to EU nationals who are not eligible to apply for settled status or who want to come to the UK post-Brexit. Whilst further clarity is awaited, employers should continue to carefully document the residency status and working permissions of their employees, to help facilitate the transition into the post-Brexit landscape.

The Government’s technical document setting out its commitments in full can be found here. Our analysis of the latest position on the implications of Brexit from an Employment and Immigration angle can also be read here.