Category Archive: Brexit

Government publishes details of administrative processes for EU nationals

The Government has today published further information on the new administrative processes which will apply to EU nationals in the UK who wish to apply for settled or temporary status post-Brexit. In brief:

  • The future status and rights of EU nationals will be defined in the Withdrawal Agreement (WA).  The WA will be incorporated into UK law, enabling EU citizens to enforce those rights.
  • A new application system is being designed from scratch.  Applications will be for either (1) settled status – 5 years’ continuous lawful residence as a worker, self-employed person, student, self-sufficient person of family member thereof; or (2) temporary status – lawful residence before a specified cut-off date, with settled status available after 5 years’ residence.
  • The application process will be streamlined, user-friendly and digital, utilising existing government data to minimise the documentary evidence an individual is required to supply. Proof of comprehensive sickness insurance will no longer be required for those who are studying or economically inactive. It will also no longer be necessary to account for every trip taken in and out of the UK.
  • The cost of the application will not exceed the cost of a British passport.
  • EU nationals who already have a Permanent Residence certificate will be subject to a simplified process with a reduced fee.
  • EU nationals will be given sufficient time to make their application post-Brexit – estimated to be 2 years. The Government is also planning to set up a voluntary process which can be used pre-Brexit for individuals who want to establish their new status as early as possible.
  • There will be an administrative review system to resolve any challenges to status decisions and, after that, recourse to the courts as now.

Full details can be found on the Government website, Status of EU citizens in the UK: What you need to know.

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Brexit: Update on future rights of EU citizens in the UK

In an update to our Be Aware article of 12 July 2017, Government publishes proposals for EU nationals, the UK and the EU have just concluded the latest round of their Brexit negotiations which will be of interest to employers who are monitoring developments as part of a communications strategy for keeping EU nationals in their workforce informed of the latest position.

In this latest round of negotiations, the Home Office has reported that progress has been made in relation to the rights of EU citizens living in the UK and UK nationals in the EU.  In particular, the UK has agreed to protect the rights to reciprocal healthcare, including European Health Insurance Cards (EHICs) for EU citizens in the UK and UK nationals in the EU who are present on the day of exit.  The UK and EU have also agreed to protect the rights of some cross border workers and are also said to be nearing a deal on preserving professionals’ rights to practise after Brexit.

Many issues remain outstanding, however. These include agreement on the rights of EU national posted workers, some aspects relating to permanent residence including the need to apply for a new residence document, and the rights of future family members.  This table highlights progress to August 2017.

The next round of negotiations is due later in September 2017.  In the meantime, the Home Office’s webpages, Status of EU citizens in the UK: What you need to know hold the latest information.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-update-on-future-rights-of-eu-citizens-in-the-uk/

Government publishes proposals for EU nationals

After many months of speculation about the Government’s proposals for European nationals[1] currently living and working in the UK, the Government has now published its Policy Paper setting out its plans.  This is welcome news to employers employing European nationals in their workforce. Whilst the terms of the Policy Paper are still, of course, subject to negotiation with the EU (and an expectation that they will be reciprocated),  they do at least serve as a useful guide to the Government’s current stance.

It is critical that employers keep up-to-date with the latest information. During this period of uncertainty, reassurance of workers is likely to be key in order to prevent loss of talent and to ensure business needs can continue to be met. Employers should therefore have a plan for keeping on top of the latest developments and a communications strategy for liaising with their staff so that the workforce has accurate information about the latest position and knows where it can find out further details, both internally and from external sources.   Regular meetings and/or notices, and the appointment of a go-to person within the organisation are both likely to be helpful in this regard.

Here is a summary of the key proposals at this stage:

  • Until the UK leaves the EU, EU nationals will continue to have the same rights to live and work in the UK as they have now;
  • At this stage, EU nationals do not need to apply for any documentation to evidence their right to stay in the UK. The existing regime will be replaced by a new process. European nationals may decide to access this new scheme before the UK’s exit from the EU but they do not have to do so. The new scheme is expected to be up and running in 2018;
  • EU nationals, who have been continuously resident in the UK for at least 5 years by the cut-off date[2], will eventually be required to apply for a residence document (regardless of whether they already hold a certificate of permanent residence) which will be proof of their right to live and work in the UK. This residence document will give the individual a new ‘settled’ status;
  • EU nationals, with settled status and at least 6 years’ residence in the UK, will be able to apply for British citizenship;
  • EU nationals, who have been living in the UK for less than 5 years at the cut-off date, will eventually be required to apply for a temporary status to give them permission to remain in the UK. Once 5 years’ residence has been achieved, the individual will be able to apply for settled status;
  • The Government plans to grant a period of ‘blanket residence permission’. This means that immediately upon the UK exiting the EU, all EU nationals already lawfully living in the UK will be given time to apply for their new immigration status. The timeframe is to be confirmed but is expected to be up to 2 years, primarily to avoid a rush for applications;
  • Family members[3] (including non-EU nationals) of European nationals who are resident in the UK before it exits the UK will also be eligible to apply for settled status (if resident for 5+ years) or leave to remain (if resident for less than 5 years);
  • European nationals who come to live in the UK after the cut-off date will be subject to new rules which have yet to be confirmed. The Government has stated that whilst these EU nationals will be allowed to remain in the UK for a temporary period, they should not have any expectation of being guaranteed a right to remain in the UK;
  • The application process to establish immigration status will be modernised and streamlined, and fees will be set at a reasonable level;
  • For benefits purpose, European nationals with settled status will be treated in the same way as comparable UK nationals. European nationals with temporary leave to remain pending the achievement of settled status will be able to access benefits on the same basis as they do now (which is broadly comparable access for workers and limited access for those not working).

If you would like to discuss the impact of Brexit on European nationals in your workforce, or how we might assist with your internal communications strategy, please email Kate Hodgkiss.

 

Useful links:

Policy paper: Safeguarding the position of EU citizens living in the UK and UK nationals living in the UK (June 2017)

Policy paper factsheet: Rights of EU citizens in the UK (June 2017)

Government guidance: Status of EU citizens in the UK: What you need to know

Email alerts: Status of EU nationals in the UK

[1] In this article, European nationals denotes nationals of the EU, EEA and Switzerland

[2] The cut-off date has not yet been confirmed but is proposed to be no earlier than 29 March 2017, and no later than the date of the UK’s exit from the EU

[3] Family members include direct family members (spouse/civil partner, direct dependants in the descending line (under 21 or dependent), direct dependants in the ascending line) including those with retained rights and extended family members whose residence has been previously facilitated by the Home Office

 

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Queen’s Speech unveils employment law changes

Today the Queen unveiled the Government’s legislative programme for the new two-year Parliament. This included a number of employment law reforms, aside from the impact of Brexit:

  • There will be a new national policy on immigration. However, there is currently very little detail about what the new policy will be. The Conservative party manifesto included an objective to reduce annual net migration to below 100,000, a commitment to double the Immigration Skills Charge levied on companies employing migrant workers to £2,000 a year by the end of the Parliament and to ask the independent Migration Advisory Committee to make recommendation about how the visa system can become better aligned with the Government’s modern industrial strategy, with a view to setting aside significant numbers of visas for workers in strategically-important sectors, such as digital technology. However, future immigration policy is an area where the DUP may seek to exert some influence and the immigration policy in respect of EU citizens is likely to evolve during the course of the Brexit negotiations.
  • The National Living Wage will be increased. The manifesto committed to a rise to 60% of median earnings by 2020 and then by the rate of median earnings.
  • The Government will enhance rights and protections in the modern workplace. The detail of this policy is likely to be informed by the Taylor Review on modern employment practices which is due to report imminently.
  • The Government will take further action to tackle the gender pay gap and discrimination. It is not clear what this will comprise. The manifesto said that the government would  require companies with more than 250 employees to publish more data on the pay gap between men and women and continue to work for parity in the number of public appointments going to women, as well as pushing for an increase in the number of women sitting on boards of companies. There were also references to helping disabled people into work.
  • There will be a new law on data protection. The new European GDPR will apply to the UK from May 2018, but will need to be replaced when the UK leaves the EU. The Government will need to either bring the GDPR directly into UK law in its current form, or introduce new rules with very similar principles, in order to ensure that the UK continues to have adequate data protection rules in the eyes of the EU. This is important to avoid any barrier to personal data flowing from the EU to the UK after Brexit and should not deter organisations from continuing their preparation for GDPR.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/queens-speech-unveils-employment-law-changes/

Brexit: Impact on European nationals in your workforce

The rights of European nationals[1] currently living and working in the UK has been one of the most high profile aspects of the Brexit process, and it remains a hot topic. The consistent message from UK Prime Minister, Theresa May, has been that securing the status of, and giving certainty to, European nationals already in the UK, and to UK nationals in the EU, is a priority for the Government.  For now, however, there is very little information about the Government’s proposals, and any plans must of course be negotiated with the remaining EU member states. It remains to be seen how these negotiations will ultimately play out.

This leaves any employers with European national employees in an uncertain playing field, with very little to go on in terms of future planning. Despite this, however, there are some key issues that employers can think about now with the aim of making the transition into any new regime as smooth as possible.

Reassurance is key

First and foremost, employers should reassure their European national employees that, for now, nothing has changed – and that there will be no change until Britain formally exits the EU. For many employers, European nationals will play critical roles within the business, and preventing a talent drain will be vital to the business’ future success. At best, little might change for existing European nationals in the future; at worst, being able to retain employees in the interim period will allow the business some time to plan for the future.

How many employees are affected?

Employers should carry out a comprehensive audit of their UK workforce to identify how many European nationals are employed, and what their current immigration status is. This review is essential, both to be able to support affected employees properly, and also to allow the business to assess the impact on future workstreams and skills, and to structure contingency plans for the future.

What sort of assistance might you be able to offer?

Employers should consider what level of support they are willing to offer their European national employees to understand the options available to them and to progress any applications to consolidate their immigration status in the UK. These options will depend on the length of time the employee has lived in the UK and include the employee applying for a registration certificate, a permanent residence certificate or British citizenship.  Appointing a ‘go-to’ person with responsibility for dealing with any employee queries may be helpful.

Beware of discrimination

Employers must be careful to ensure that any decisions relating to employment are not discriminatory towards any particular nationality; for example, employers should avoid the temptation to avoid recruiting European nationals simply because of the Brexit uncertainties.

It is also essential that employers are alive to the impact of Brexit on employee relations in the workplace. Employers should review, communicate and give high-level backing to their equality and diversity policy to ensure employees understand their rights and responsibilities not to discriminate or harass other employees, including in relation to another employee’s nationality.

Keep abreast of the Government’s proposals

In principle, the UK and the EU appear to be agreed on the need to secure a reciprocal deal to guarantee the rights of the 3 million or so existing European nationals in the UK, and the 1 million or so British nationals living in the EU. However, there are countless other issues on the table to be considered, not least in this context –  matters such as unborn children, and the ability to move, marry, divorce and claim benefits, to name just a few.  It is perhaps unsurprising therefore that, to date, the Government has not put forward any concrete proposals.  Employers should therefore keep a close watching brief to ensure they are up-to-date with the latest information.

If you would like to discuss the impact of Brexit on European nationals in your workforce, or would like a copy of our Snapshot publication on this issue, please email Kate Hodgkiss.

[1] In this article, European nationals denotes nationals of the EU, EEA and Switzerland

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-impact-on-european-nationals-in-your-workforce/

Brexit White Paper: implications for employers

The Government has published its White Paper on the basis on which it proposes to approach negotiations with the EU on Brexit.

There are three parts of the White Paper which will be of particular interest to employers:

  • Controlling immigration;
  • Securing rights for EU nationals in the UK and UK nationals in the EU; and
  • Protecting workers’ rights.

Controlling immigration

As already widely reported, the Government will seek to end the free movement of people in order to control the numbers of people who come to the UK from the EU. Migration of EU nationals will be subject to UK law. However, there is no indication at this stage whether EU nationals will simply become subject to the same points-based system which currently applies to non-EEA nationals, or whether the rules will be modified for EU nationals. The White Paper says “We will create an immigration system that allows us to control numbers and encourage the brightest and the best to come to this country, as part of a stable and prosperous future with the EU and our European partners…We are considering very carefully the options that are open to us to gain control of the numbers of people coming to the UK from the EU. As part of that, it is important that we understand the impacts on the different sectors of the economy and the labour market. We will, therefore, ensure that businesses and communities have the opportunity to contribute their views.”

One possibility is that Tier 3 of the points-based system, which was intended for low-skilled positions but was not brought into operation, could be used to facilitate the continued employment of migrant workers from the EU in sectors which currently rely heavily on them.

New immigration requirements may be subject to phased implementation.

Securing rights for EU nationals in the UK and UK nationals in the EU

There are an estimated 2.8 million EU nationals resident in the UK, and an estimated 1 million UK nationals long-term resident in other EU countries. The White Paper notes that the Government would have liked to reach a reciprocal deal on securing their status before beginning negotiations on Brexit but this has not proved possible.

Protecting workers’ rights

The White Paper states that the Government has committed not only to safeguard the rights of workers set out in European legislation but to enhance them. The White Paper also notes that UK law already goes beyond what is required by Europe in some respects, including the right to 5.6 weeks’ paid annual leave, 52 weeks’ maternity leave and shared parental leave and pay. The Great Repeal Bill, which will convert all existing European law into domestic law when the UK leaves the EU, will maintain the protections and standards that benefit workers.

The Government also makes specific reference to the Taylor review of employment practices in the modern economy, which will consider how employment rules need to change in order to keep pace with modern business models, such as: the rapid recent growth in self-employment; the shift in business practice from hiring to contracting; the rising use of non-standard contract forms and the emergence of new business models such as on-demand platforms.

There is also reference to ensuring that the voices of workers are heard by the boards of publicly-listed companies for the first time, albeit watered down from the original proposal to have workers on boards.

In the short to medium term, it appears that the intention is that very little will change in UK employment law. Leaving the EU does, however, give more flexibility for future change especially as the Chancellor Philip Hammond told German newspaper Welt am Sonntag recently that the UK could be “forced to change [its] economic model” if it does not get the right deal in negotiations with the EU, widely assumed to be a reference to cutting business taxes and reducing employment rights.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-white-paper-implications-for-employers/

Brexit: Supreme Court holds that an Act of Parliament is necessary before UK Government can trigger Article 50

The UK Supreme Court today held by a margin of 8 judges to 3 that the UK Government cannot trigger the UK’s exit from the European Union without an Act of Parliament. It also held unanimously that UK ministers were not legally compelled to consult the devolved legislatures before triggering Article 50.

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