Frequently asked questions

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Capsticks

On 29 March 2017, the two-year negotiation period leading to the UK’s exit from the European Union (EU) commenced. Negotiations are ongoing, and the implications of Brexit remain unclear for employers and EU citizens living and working in the UK. On 8 December 2017, UK and EU negotiators published a joint report recommending that sufficient progress on each of the three key withdrawal issues (including citizens’ rights) has been made to enable negotiations to move to the next stage. The conclusions of the joint report will be used as a basis for drafting the withdrawal agreement that will set out the terms for the UK’s exit from the EU in 2019.        

The government has previously confirmed that workers’ rights will be protected by The Repeal Bill, which will convert existing EU law into UK law. It’s not anticipated that many changes will be made to UK employment law, at least not in the short term.

In collaboration with our strategic partner, Capsticks LLP, we have produced these frequently asked questions surrounding the UK’s exit from the EU and how it affects employers and staff in the NHS. As yet, many of these questions cannot be fully answered, but what we do know, and our current recommendations, are set out below. It should also be borne in mind that the agreement issued by the UK and EU negotiating parties is subject to the caveat that “nothing is agreed until everything is agreed”. This means that, while these FAQs are based on the current agreement, nothing will be finalised until the withdrawal agreement is drafted and agreed by Parliament. 

These FAQs will be updated as the negotiation process continues.

Definitions

Brexit

The informal term for the UK’s exit from the EU, following the government’s triggering of Article 50 of the Treaty on European Union.

European Economic Area (EEA)

A free trade zone consisting of the member states of the EU, plus Iceland, Norway and Liechtenstein. In these FAQs, the term EU nationals includes nationals of both the EU and the EEA.

European Union (EU)

A political and economic union of 28 member states.

EU citizen

A national of one of the EU or EEA member countries.

Permanent residence

The right to remain indefinitely in the UK once an EU citizen has been resident in the UK for five years or more. It will cease to exist following Brexit.

Naturalisation

The process of obtaining British citizenship following a qualifying residence period. Once an individual is naturalised, they are entitled to apply for a British passport. The immigration status of naturalised citizens will be unaffected by Brexit.

Settled status

The new right to remain in the UK for qualifying EU citizens that will effectively replace ILR following Brexit.

1. How will the outcome of the EU referendum affect our current staff from the EU?

2. What action should I advise our EU staff to take now?

3. If an EU member of staff has British citizenship how will the UK leaving the EU affect them? 

4. We have a shortage of qualified healthcare professionals and have planned a recruitment trip to an EU country in the next few months, shall we still proceed with our recruitment?

5. What should we advise an EU member of staff who has applied for indefinite leave to remain under the current process and was turned down?

6. What will happen to an EU national who has already obtained UK residence documents, will these be valid after the UK leaves the EU?

7. When should we be advising our EU staff to apply for settled status?

8. What is the situation for families of our EU staff? 

9. What evidence will EU citizens be required to provide with their application for settled status under the new system? Can we expect previous EU staff to get in touch requiring proof of employment?

 

1. How will the outcome of the EU referendum affect our current staff from the EU?

The joint report by the UK and the EU negotiating parties states that the overall objective of the withdrawal agreement with respect to EU citizens rights is to retain the same rights to live and work here as they enjoyed prior to Brexit. Following Brexit, it is intended that there will be a grace period of up to two years to enable EU citizens in the UK to regulate their status. This would protect those EU citizens from having to leave the UK immediately on the exit date, who would otherwise have the right to remain here.

After the UK leaves the EU, under the government’s current proposals rel="noopener noreferrer" as set out in the policy paper published in June 2017 and the technical document submitted to the European Commission on 7 November 2017 as part of the ongoing negotiations, qualifying EU citizens will be able to apply for settled status. This is similar to the current right of EU citizens to obtain permanent residence. To qualify for settled status, they must have been resident in the UK before a specified date, and have five years’ continuous residence in the UK. The joint report confirms that the specified date will be the date on which the UK leaves the EU, otherwise known as the withdrawal date.

EU citizens who were resident in the UK before the withdrawal date, but who do not have five years’ continuous service, will be able to apply for temporary status to remain in the UK until they accrue five years’ service and are able to apply for settled status.

EU citizens who arrive in the UK after the withdrawal date will be able to remain in the UK for a period and may become eligible to settle permanently, depending on their circumstances. However, this is not guaranteed.

Citizens of the Republic of Ireland will be unaffected and will be permitted to remain in the UK due to existing arrangements between the UK and the Republic of Ireland outside the EU freedom of movement.

The qualifications of those EU citizens practising in the UK prior to the withdrawal date will continue to be recognised following that date.

2. What action should I advise our EU staff to take now?

Employees should not apply for a permanent residence document under the current system as this will not have any legal effect after the UK leaves the EU, and EU citizens will need to make another application for settled status when the new rules come into force.

Employees should be encouraged to retain any documents to prove their continuous residence in the UK, such as travel documents. They should also keep a record of any absences, and the reasons for such absences, that might impact on any future settled status application.

3. If an EU member of staff has British citizenship how will the UK leaving the EU affect them? 

EU citizens who have been naturalised as British citizens will be unaffected by the UK’s exit from the EU and will be permitted to retain their citizenship. 

EU citizens who have held a document confirming permanent residence for 12 months or more are eligible to apply for naturalisation as a British citizen. EU citizens considering naturalisation will need to ensure that the rules of their home country permit dual nationality, and whether any of their family members may be affected by them obtaining British citizenship. A naturalisation application is also expensive – currently £1282 for adults and £973 for children. EU citizens who have legitimately obtained permanent residence will be guaranteed settled status once the new system is in place and therefore an application for naturalisation may be unnecessary.

4. We have a shortage of qualified healthcare professionals and have planned a recruitment trip to an EU country in the next few months, shall we still proceed with our recruitment?

The UK remains a member of the EU until March 2019, and the rights of EU citizens to live and work in the UK will be unaffected until that date. Therefore, existing arrangements around recruitment and employment of individuals from within the EU currently remain unchanged.

5. What should we advise an EU member of staff who previously requested a permanent residence document and was unsucessful?

There is no need for your EU staff members to request a reconsideration now as, the government has confirmed that until the UK exits the European Union, EU citizens that are resident in the UK will continue to benefit from their existing rights to live and work here. Following the UK’s exit from the EU, the individual will need to make a new application for settled status, regardless of whether or not they hold a permanent residence document.  

The technical document submitted by the government to the European Commission as part of the ongoing exit negotiations makes clear that those applying for settled status following Brexit will not have their applications refused on minor technicalities, and caseworkers considering settled status applications will exercise discretion where appropriate. Therefore, it is possible that EU citizens who have had applications turned down previously may nevertheless be successful in a settled status application.

Unsuccessful applicants will also be given a statutory right to appeal against the decision, in keeping with the existing right under the EU Free Movement Directive.

6. What will happen to an EU national who has already obtained UK residence documents, will these be valid after the UK leaves the EU?

EU citizens who have been naturalised as British citizens will be unaffected by the UK’s exit from the EU and will be permitted to retain their citizenship. EU citizens who hold other residence documents, such as a permanent residence document or residence card, will need to apply for settled status under the new system. However, it is expected that the process will be streamlined for such applicants and documents will be converted free of charge.

7. When should we be advising our EU staff to apply for settled status?

EU staff who meet the qualifying conditions rel="noopener noreferrer" should be advised to apply for settled status as soon as the new system is introduced, which is expected to be some time in 2018. Those who meet the qualifying conditions following this date should submit their application as soon as possible. While EU citizens will have a grace period following Brexit when they will be granted temporary leave to remain in the UK, it is sensible to make an application for the new settled status as soon as possible as the system is likely to be busy. 

The application process and requirements for obtaining settled status have not yet been confirmed. The government's technical document submitted to the European Commission on 7 November 2017 reiterates that the system will be streamlined, low-cost and user-friendly, and the 85-page form will be discontinued. 

Employees should be encouraged to retain any documents to prove their continuous residence in the UK, such as travel documents. They should also keep a record of any absences, and the reasons for such absences, that might impact on any future settled status application.

8. What is the situation for families of our EU staff? 

Family members may accompany or join a qualifying EU citizen any time before the UK’s exit from the EU. Under the joint report issued by the UK and EU negotiating parties, family members who accompany or join the EU citizen after the date on which the UK leaves the EU will continue to benefit from rights of residence, provided that (i) they were related to the EU citizen on the withdrawal date, (ii) the EU citizen was residing in the UK on the withdrawal date, and (iii) the family member continues to be related to the EU citizen at the point they wish to join the EU citizen in the UK.

Family members who become related to an EU citizen after the withdrawal date (other than children born or legally adopted after that date), will be subject to the requirements of UK law ie their spouse or civil partner must meet a minimum income threshold, currently £18,600. 

9. What evidence will EU citizens be required to provide with their application for settled status under the new system? Can we expect previous EU staff to get in touch requiring proof of employment? 

The rel="noopener noreferrer" application process and requirements for obtaining settled status have not yet been confirmed. It is likely that the new system will be available in 2018 and the government’s technical document submitted to the European Commission on 7 November 2017 reiterates that the system will be streamlined, low-cost and user-friendly, and the 85-page form will be discontinued.

An online digital application system is being established. This is expected to use existing official data sources to minimise the need for applicants to produce wage slips or other documents to demonstrate five years’ continuous residence. This should minimise the impact of the application process for both applicants and former employers. EU citizens will not be required to submit biometric data such as fingerprints as part of the application process.

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