In collaboration with our strategic partner, Capsticks LLP, we have produced these frequently asked questions (FAQs) on the UK’s exit from the European Union (EU) and how this affects employers and staff in the NHS. Employers should note that these FAQs are accurate as of the date above.
The clause in the EU Lisbon Treaty that outlines the steps to be taken by a country seeking to leave the EU.
The informal term for the UK’s exit from the EU, following the government’s triggering of Article 50 of the Treaty on the 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 27 member states.
A national of one of the EU or EEA member countries.
EU Settlement Scheme
The scheme by which EU citizens and their families can apply for settled status in the UK.
Indefinite leave to remain (ILR)
An immigration status granted to a person who does not hold the right of abode in the UK, but who has been admitted to the UK without any time limit on his or her stay and who is free to take up employment or study, without restriction.
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.
A temporary status which will allow EU citizens to stay in the UK until they accumulate five years residence to apply for settled status.
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.
The new right to remain in the UK for qualifying EU citizens that will effectively replace permanent residence following Brexit.
1. How does the UK’s exit from the EU on 31 January 2020 affect our current staff from the EU and their families?
Under the terms of the Withdrawal Agreement entered into between the EU and the UK, the UK is now in a transition period, during which time further arrangements relating to the UK’s ongoing relationship with the EU will be negotiated. Unless extended, the transition period will end on 31 December 2020. Until this date, EU nationals will be able to continue to live and work in the UK as they can now and can travel freely to or from the UK. They will not have to show that they have applied for or obtained settled status.
However, free movement will then cease to apply, and EU citizens and their families will be required to apply for settled status via the EU Settlement Scheme. You can find out more information on the EU Settlement Scheme page on our website. The scheme is open for applications until 30 June 2021.
Your staff from the Republic of Ireland will be unaffected and permitted to remain in the UK due to existing arrangements between the UK and the Republic of Ireland outside the EU right to freedom of movement. However, they may apply for settled status if they wish to do so.
Note that in these FAQs, references to EU nationals also includes nationals of EEA countries (EU countries plus Norway, Liechtenstein and Iceland) and Swiss nationals.
It is not anticipated that many changes will be made to UK employment law, at least not in the short term, although this remains to be confirmed.
2. What about staff who have permanent residence or indefinite leave to enter/remain in the UK?
EU staff who have a valid UK permanent residence document will be required to obtain settled status by applying to the EU settlement scheme, as permanent residence will cease to be a valid immigration status.
Staff who have indefinite leave to enter/remain in the UK will not need to apply to the EU Settlement Scheme and can remain in the UK under their existing immigration status. They can, however, choose to apply and, should they meet the criteria, will be granted “indefinite leave to remain under the EU Settlement Scheme”. The advantage of applying for settled status is that they will be able to leave the UK for up to five years without losing their settled status (four years for Swiss nationals). This is an increase from two years under indefinite leave to enter/remain. Other than this there is no difference between the two.
3. Which of my EU staff are eligible to apply for the EU Settlement Scheme?
There are three eligibility requirements for EU citizens applying to the scheme. They must:
- be an EU national or family member;
- be a resident in the UK by 31 December 2020; and
- have no serious or persistent criminal background.
EU citizens who can demonstrate that they have been resident in the UK for more than five continuous years will be eligible for settled status. EU citizens who arrive in the UK before 31 December 2020 but have not been living continuously in the UK for five years (or cannot demonstrate that they have done so) will be granted pre-settled status.
4. What is meant by continuous residence?
Continuous residence means that a person has not been outside of the UK for more than six months in total in any 12-month period. There is no restriction on the number of absences a person can make from the UK.
A single period of absence of more than six months but less than 12 months is permitted where this is for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.
Any period of absence in relation to compulsory military service is also permitted.
5. What action should we advise our EU staff to take now?
EU staff should be encouraged to apply for settled status as soon as possible and in any event before the EU Settlement Scheme closes on 30 June 2021.
The only exception to this is where staff do not yet have five years’ continuous residence in the UK but will reach five years’ continuous residence before the scheme closes on 30 June 2021. In these circumstances, individuals may prefer to wait and make one application for settled status, rather than be initially granted pre-settled status and then have to make another application for settled status once they qualify. However, there is nothing to prevent staff from making two applications should they wish to do so.
6. How do our EU staff apply for settled status and how long will the process take?
The EU Settlement Scheme requires applicants to complete three steps:
- Confirm identity using a passport or residence card. This can be done using the EU Exit: ID Document Check app (available on Android devices and Apple devices from iPhone 7 and above), sending the documents to the Home Office by post, or by visiting one of the locations where documents can be scanned and verified. Applicants will also need to verify their identity by uploading a photo of themselves in their application.
- Provide evidence of residence in the UK. This may be done automatically via employment and benefit records such as national insurance number. However, if applicants do not have five continuous years of national insurance contributions, they will need to provide supplementary evidence (or will be granted pre-settled status).
- Declare they have no serious or continuous criminal convictions.
Supplementary evidence may include: annual bank statement, a signed and dated letter from an employer or a signed and dated letter from an accredited college, a TV licence, confirmation of doctor appointments, etc. Further information about what evidence is accepted can be found on the GOV.UK website.
The Government website states that current processing times are around five days, although applications can take up to one month.
7. If an EU member of staff has British citizenship how will the UK leaving the EU affect them?
Any of your EU staff who have been naturalised as British citizens will be unaffected by the UK’s exit from the EU.
EU citizens who have held a document confirming permanent residence (including settled status) 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, whether there are any tax implications, and whether any of their family members may be affected by them obtaining British citizenship.
A naturalisation application currently costs £1,330 for adults and £1,012 for children.
8. 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 proceed with our recruitment?
The rights of EU citizens to enter to live and work in the UK are currently unaffected until 31 December 2020. Therefore, existing plans to recruit and employ individuals from within the EU remain unchanged.
9. What should we advise an EU member of staff who previously requested a permanent residence document and was unsuccessful?
There is no need for your EU staff member to request a reconsideration. They should now make an application under the EU Settlement Scheme.
10. What is the situation for families of our EU staff?
Family members who are living with, or join, EU citizens in the UK by 31 December 2020 will be able to apply for settled status, after they have accrued five years' continuous residence (or be granted pre-settled status).
Close family members (defined as spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) will be able to join EU citizens following the UK's exit from the EU, where the relationship existed on 31 December 2020.
Children born to or adopted by an EU citizen after being granted settled status, will automatically become a British citizen if they’re born in the UK. You will not need to apply for settled status on their behalf.
Family members who become related to an EU citizen after 31 December 2020 (other than children born or legally adopted after that date), will be subject to the requirements of UK immigration law, which is currently under review.
11. How should we check the right to work status of our EU staff and their families after 31 December 2020?
EU nationals will not be issued with a document evidencing their settled or pre-settled status but will access the information electronically. They will be given a code which they can share with their employer. From 1 January 2021 you will need to obtain this code from new starters, or alternatively obtain confirmation that they were living in the UK prior to 31 December 2020 (as there is no obligation to make an application until 30 June 2021).
We understand that there will be no obligation to check the immigration status of those EU nationals who joined your organisation prior to 31 December 2020, although it is important to note that they would be classed as working unlawfully if they do not make an application before 30 June 2021.
12. Will holders of settled status be required to renew or update their status, for example if they update their passport?
There will be no obligation to renew settled status at any time. However, individuals are currently required to keep their personal details up to date online. If they update their passport, they should update their online information with the new passport number and submit the passport to the Home Office to be updated with their settled status. However, failure to do so will not invalidate their settled status.
13. Will it be possible to identify an individual's immigration status via ESR?
NHS Employers is working with colleagues in the NHS Business Services Authority (NHSBSA) regarding settled and pre-settled fields in ESR and inclusion on the NHS Jobs application form. We will advise employers as this develops and the new fields/questions become available.
14. How can we support our EU staff during this period?
It is important to raise awareness and provide information and support, particularly with regard to making applications under the EU Settlement Scheme. Information could be cascaded using posters, presentations or drop-in sessions, legal support, engaging with staff side, via the intranet or featured on payslips. Consideration should particularly be given to your harder to reach employees such as those who are community based or those working in estates.
Capsticks LLP can offer support for your trust to answer questions from your EU staff. For further information please contact Sarah Parkinson on 020 8780 4756 or via e-mail at email@example.com.
There should be a dedicated point of contact within HR for handling EU settlement scheme queries. Staff who are concerned that they or their family members will not be able to evidence five years’ continuous residence in the UK, or who have travelled a lot outside the UK, should be reassured that this will not lead to their application being refused but rather that they will be granted pre-settled status which essentially grants them the same rights, although it will need to be switched to settled status. We are aware that this has caused some confusion and anxiety for applicants.
For further information or support, staff should be advised to contact the EU Settlement Scheme Resolution Centre on 0300 123 7379 or referred to the GOV.UK website.
Finally, remember to show your support on social media by using the hashtag #LoveOurEUStaff and check out our suite of EU Settlement Scheme resources, including an eligibility flowchart and good practice examples of support that NHS organisations can offer their EU staff.
Background - Brexit timeline
29 March 2017
The two-year negotiation period leading to the UK's exit from the EU commenced.
26 June 2017
The government produced a policy paper on safeguarding the position of EU citizens living in the UK and UK nationals living in the EU.
7 November 2017
The UK government submitted a technical document on citizens’ rights to the European commission as part of the ongoing negotiations.
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) had been made to enable negotiations to move to the next stage.
21 June 2018
The government published a statement of intent giving details of how the new EU Settlement Scheme will operate.
30 March 2019
The EU Settlement Scheme opened.
10 April 2019
The European Council grants an extension of the Article 50 period to 31 October 2019.
28 October 2019
The European Council grants a further extension meaning the new exit date is set for 31 January 2020.
31 January 2020
The UK formally left the European Union, triggering a transition period until 31 December 2020.