Tag Archive: Brexit

Brexit: Deal on EU citizens agreed in principle

On 8 December 2017, an agreement in principle was reached between the UK and the EU on the future rights of EU citizens currently living lawfully in the UK.  In short, the Government has announced that these individuals will be able to stay in the UK and enjoy broadly the same rights and benefits as they do now.  This agreement applies equally to UK citizens currently living in the EU. However, a word of caution – this agreement is subject to the important caveat that ‘nothing is agreed until everything is agreed’.  For now, the Government maintains that EU citizens do not need to take any steps at this stage to establish immigration status.

The key aspects of agreement on EU citizens include:

  • The key date for establishing rights will be 29 March 2019.
  • EU citizens who legally reside in the UK before 29 March 2019 will be able to stay in the UK, and close family members will be able to join them after the UK has left the EU (where that relationship existed before, and continues after, 29 March 2019).  These family members include spouses, unmarried partners, children, grandchildren, dependent parents and grandparents.
  • Individuals already holding a permanent residence document on 29 March 2019 will have that document converted into a new document free of charge, subject only to verification of identity, a criminality and security check and confirmation of ongoing residence.
  • Individuals who have acquired permanent residence rights can leave the UK for up to 5 consecutive years without losing their residence rights.
  • EU citizens with settled status and temporary permission to stay will continue to have the same access as they currently do to healthcare, pensions and other benefits.
  • The implementation and application of citizens’ rights will be monitored in the UK by an independent national authority; its scope and functions to be discussed in the next phase of negotiations.
  • Administrative procedures for applications for status will be transparent, smooth and streamlined. In particular, the UK will not be able to require anything more than is strictly necessary and proportionate to determine status.  Application forms will be short, simple and user friendly, and a proportionate approach will  be taken to those who miss a deadline for application where there is a good reason. A period of at least 2 years will be allowed to submit status applications.
  • The Government will announce further details on the administrative processes in the first half of 2018.  Individuals can be kept up-to-date via the website Status of EU citizens in the UK: What you need to know
  • Details of the immigration rules for EU citizens who arrive after 29 March 2019 and during the implementation period are yet to be agreed.
  • The Government has published case studies to help individuals determine their status rights.

For further information, or to discuss how we can help manage the impact of Brexit on EU nationals in your workforce, please contact Kate Hodgkiss, or your usual DLA Piper contact.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-deal-on-eu-citizens-agreed-in-principle/

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.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/government-publishes-details-of-administrative-processes-for-eu-nationals/

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/

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.

Click here for more detail from dlapiper.com

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-supreme-court-holds-that-an-act-of-parliament-is-necessary-before-uk-government-can-trigger-article-50/

Brexit: Update on the future of ECJ employment case law and directly effective employment rights

As we have reported previously,  the Government’s position in relation to the future of workers’ rights is that, through the mechanism of the “Great Repeal Bill”,  the UK’s EU derived employment laws will remain in place at Brexit and that workers’ existing rights will continue to be guaranteed in law.   This has been confirmed by both the Prime Minster, Theresa May and Brexit Secretary,  David Davis.

Although this makes the position clear as regards employment rights which are enshrined in both primary and secondary UK legislation,  less certain is what the post-Brexit status will be of directly effective EU Rights, such as the right to equal pay contained in the Lisbon Treaty, and also of the relevant case law of the European Court of Justice (ECJ).

The ECJ has been responsible, throughout the UK’s membership of the EU, for interpreting employment rights and, while occasionally their judgments have been incorporated into UK law by consequent amendments to legislation,  more usually the judgments are given effect by the UK courts following the ECJ’s stance in their own case law decisions.

In some instances the ECJ’s judgments have arguably extended the scope of certain employment rights. The examples which are probably most unpopular currently with UK employers relate to holiday,  where the ECJ has ruled that workers continue to accrue holiday while on sick leave and that holiday pay should cover not just basic pay, but all elements of remuneration.

The UK’s system of precedent means that pre-Brexit UK court judgments which follow ECJ reasoning will remain binding on the lower courts post-Brexit.    However,   because,  post-Brexit,  the UK courts will no longer be bound to follow existing and future ECJ judgments,  there is a risk of contentious judgments,  like those on holiday pay,  being re-litigated by employers with a view to persuading the higher UK courts, once they are no longer bound by ECJ precedent,  to reach a different decision.      Contrary to the Government’s stated intentions, this does appear to raise the potential for certain “existing” employment rights to be eroded post-Brexit.

In early November, the House of Commons debated “Exiting the EU and workers’ rights”.  During this debate the Government appeared to confirm that its intention is to ensure that both directly effective EU employment laws,  as well as judgments of the ECJ,  will be given effect in UK law at the point of Brexit.   In closing the debate,  David Jones,  Minister of State for Exiting the European Union,  stated that “[On] the issue of what will happen to EU case law and judgments of the European Court of Justice, I wish to make it clear that the starting position of the Government is that EU-derived law, from whatever quarter,  will be transferred into United Kingdom law in full at the point of exit”.

This, however, is a slightly different stance to that taken by Jesse Norman, the Minister for Energy and Industry when addressing the House of Lords EU Energy and Environment Sub-Committee this week.    Mr Norman confirmed that ECJ judgments already codified into legislation would continue to have force via the Great Repeal Bill,  but gave no indication that non-codified judgments would be captured via this process.  His view is that “it may be open to [UK] judges to follow or not follow those”.

In conclusion,  although it appears that the Government intends to preserve all existing EU employment rights including those derived from case law,  it is unclear how this will be brought about in practice.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-update-on-the-future-of-ecj-employment-case-law-and-directly-effective-employment-rights/

Brexit: What next in the Article 50 judicial review?

The English High Court today held that the UK Government cannot trigger Article 50 of the EU Treaty to commence the UK’s exit from the European Union, or ‘Brexit’, without referring the matter to Parliament. This differs from the earlier decision by the Northern Ireland High Court, where the argument that exit required an Act of Parliament or some other form of Parliamentary mandate was rejected.

Key points in the judgment 

The UK Government had argued that in enacting the European Communities Act 1972 – the legislation which governed the UK’s entry to the European Union in 1973 – the Crown retained its prerogative power to effect a withdrawal from the EU treaties, and thereby the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not.

The court rejected this argument, finding nothing in the text of the 1972 Act to support this conclusion.

What happens next? 

The court gave permission to the UK Government to appeal directly to the Supreme Court, bypassing the Court of Appeal. This is known as “leapfrogging”. Leapfrog appeals are only available in exceptional circumstances and usually require the granting of a leapfrog certificate by the trial judge and the grant of permission to appeal by the UK’s highest court, the Supreme Court. In this case, a leapfrog appeal has already been agreed. This is unusual but unsurprising: The case gives rise to significant issues of public law that have rarely if ever been considered in such an important context.

We understand that dates have been set aside in December for the Supreme Court to hear the appeal, most likely before a full bench of eleven judges. Supreme Court hearings are streamed live and this case will garner significant attention, both nationally and internationally.

What is the mechanism for withdrawing from the EU?

Article 50 of the Treaty on European Union provides the legal basis for a Member State to leave the EU. Article 50(1) states that any Member State may decide to withdraw from the EU in accordance with its own “constitutional requirements”. This term is not defined. The question of what the UK’s constitutional requirements are for these purposes has been a key issue in the judicial review proceedings. Under Article 50(2), a Member State that decides to withdraw must notify the European Council of its intention. Once a Member State has given notice, a two year period begins in which a withdrawal agreement is to be negotiated. The Member State ceases to be a member of the EU from the date of entry into force of the withdrawal agreement or, failing that, two years after the Article 50 notification (unless all Member States agree to extend).

For more information see: Brexit: What happens next?

What difference does an Act of Parliament make?

If an Act of Parliament is required before the Government can trigger the UK’s exit from the EU, the standard procedure for creating a new law will presumably have to be followed.

The process begins with the drafting of a Bill. This is followed by a number of readings of the Bill in the House of Commons, along with detailed examination of the Bill by committee and a reporting stage. There is the opportunity for debate at various points along the way. After the final reading, Members of Parliament vote on whether the Bill should be approved. The Bill follows a similar process through the House of Lords. Final amendments are then considered. Once passed, a Bill needs to receive Royal Assent before it becomes an Act of Parliament.

The effect of this process is that there will be the opportunity for another airing of the arguments for and against leaving the EU in both the House of Commons and the House of Lords. There is also likely to be debate about how the exit negotiations should be conducted, and the form of any withdrawal agreement.

The outcome of the vote on the Bill is unpredictable. Most MPs are thought to have voted for the UK to stay in the EU. We are not aware of any analysis of the views of members of the House of Lords, but the Constitution Committee of the House of Lords published a report in September 2016 which concluded that it was constitutionally appropriate for the assent of Parliament to be sought for the triggering of Article 50. This, they said, could be achieved either by an Act of Parliament or a resolution stating Parliament’s approval for the triggering of Article 50. Clearly therefore the House of Lords sees Parliament as having an important role to play in the Article 50 process. All that said, it would be difficult for Parliament to ignore public opinion on Brexit, as evidenced by the outcome of the referendum.

In October 2016, Theresa May announced that she would trigger Article 50 by the end of March 2017. This timing could now be at risk.

What else do you need to know?  

The court was not asked to decide the important question of whether or not an Article 50 notice can be revoked. Indeed the Attorney-General appeared to concede that such a notice, once given, would not be revocable. The Attorney-General’s statement might not be categorical, and there are certainly differing views on this issue. Donald Tusk, President of the European Council, recently suggested that an Article 50 notice could be withdrawn. Others in Brussels disagree. Ultimately this is a question of EU law (with the Court of Justice of the European Union as the final court of reference) rather than of English law.
In Northern Ireland, a similar legal challenge was brought to decide whether the consent of the Northern Irish Assembly is required to trigger Article 50. This challenge was rejected by the Northern Ireland High Court and this case is also likely to be appealed to the UK Supreme Court.

Conclusion 

It is fairly unusual for the courts to be called on to intervene in the core workings of the UK’s constitution. For constitutional lawyers, this case represents a rare opportunity to explore sometimes complex legal arguments about the intertwined roles of Government and Parliament. For the rest of us, the outcome is the most important thing. For now, the only clear consequence of the High Court judgment is that Brexit uncertainty is set to continue.

By Hazel Moffat, Camilla MacPherson and James MacGachie

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-what-next-in-the-article-50-judicial-review/

High Court hears legal challenge to Government triggering Article 50 to leave the EU

The High Court has heard 3 days of argument in legal proceedings brought by a group of individuals seeking to determine whether the UK Government has the legal power to trigger the Article 50 of the Treaty of the European Union process to leave the EU without an Act of Parliament. A number of British citizens are suing the Government claiming that leaving the European Union will deny them rights derived from the treaties of the European Union which have been given force in UK law under the European Communities Act 1972, which they claim can only be removed by an Act of Parliament. Lawyers for the claimants also argue that leaving the European Union will amend Scotland’s separate system of law, which again they say can only be amended by an Act of Parliament. The Government argues that the result of the referendum on 23 June gave it a mandate to begin the exit, and that it has the power to trigger Article 50 under royal prerogative without a vote in Parliament. Appearing for the Government, the Attorney General Jeremy Wright argued that triggering Article 50 was a classic example of the proper and well-established use of the royal prerogative by the executive. The Government argues that Parliament did not take the opportunity to prevent a restriction on the use of royal prerogative for the triggering of Article 50, and that there is no inevitability that individuals will lose EU rights as that will be a matter for negotiation. The legal arguments are complex, raising thorny principles of constitutional law. However, the 3 day hearing did raise some interesting points:

  • Lawyers for both sides are proceeding on the basis that the triggering of Article 50 is irrevocable, although the president of the European Council Donald Tusk said last week that the UK could still abandon the formal departure process after giving notice under Article 50.
  • Attorney General Jeremy Wright, representing the UK Government, told the court it is “very likely” MPs will be able to vote on the final Brexit agreement between the UK and the European Union.
  • James Eadie QC, representing the UK Government, told the court that EU citizens living in the UK will not automatically lose the right to remain in the country at the end of the Brexit process, since the right to reside in the UK is enshrined in national law.

Lord Chief Justice Lord Thomas, Master of the Rolls Sir Terence Etherton and Lord Justice Sales reserved their decision last Tuesday at the end of the 3 day hearing but said that judgment would be given as quickly as possible. It is likely that, whatever the outcome of the High Court hearing, the case will be appealed to the Supreme Court, with a hearing expected to take place in early December.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/high-court-hears-legal-challenge-to-government-triggering-article-50-to-leave-the-elast/

Brexit timing clarified: employment law set to continue intact

The Conservative Party Conference has provided Theresa May, and her Government, with an opportunity to publicise their plans for the timing of Brexit.

In her speech to the Conference on 2 October,  the Prime Minster announced that –

  • Article 50 of the Lisbon Treaty will be invoked by the end of March 2017, triggering the start of the UK’s formal withdrawal from the European Union.  At that point, the two year period of negotiations between the EU and the UK, to design the exit agreement, will commence. The UK will leave the Union by March 2019 (absent an agreed extension).
  • In the next Queen’s Speech, which will be in either April or May 2017,  a Great Repeal Bill will be introduced, to come into force on the date on which the UK actually leaves the EU.

Despite its rather grand name, the bill is simply a device to enable the Government to manage the process of separating UK law from EU law,  where it decides that this is necessary.   The bill will repeal the European Community Act 1972, the UK law that currently gives supremacy to EU law, and at the same time,  will convert all existing EU law into UK law.

This means that, as at the date of Brexit,  there will be no immediate end to the applicability in the UK of EU derived laws,  including employment laws.   Instead,  they will remain intact and in place,  with the Government/Parliament then able to decide whether to retain or repeal or amend them at their leisure, post Brexit.

For more information on and analysis of the Great Repeal Bill,  click here.

In terms of what these announcements mean for UK employment law,  it remains the case that there is no immediate change.  The plan is for EU derived employment laws to remain in place at Brexit and will continue until repealed or changed.   In fact, it appears that there may be no Brexit-related change for quite some time, if at all,  given that Theresa May also used her Conference speech  to announce that, “existing workers’ legal rights will continue to be guaranteed in law,  and they will be guaranteed as long as I am Prime Minister”.   This has been confirmed by David Davis, the Secretary of State for Exiting the European Union,  who recently announced to Parliament that, “[the Great Repeal Act] will provide for a calm and orderly exit and give as much certainty as possible to employers, investors, consumers and workers.  And we have been clear,  UK employment law already goes further than EU law in many areas – and this Government will do nothing to undermine those rights in the workplace”. For a recent House of Commons briefing paper on “Brexit and Employment Law”,  click here.

It seems,  therefore, that businesses hoping that Brexit might provide an opportunity for rules on, for example, agency workers,  holiday pay or discrimination compensation to be revisited could be disappointed in the short tem.    This does not mean, however, that Theresa May’s Premiership will be a quiet time for employers. Announcements over recent weeks indicate that topics in which the Government is interested include both worker representation on company boards and the interaction between the regulatory framework surrounding employment and modern business models. The suggestion is that new regulation in these areas may be in the offing.

 

Permanent link to this article: http://www.dlapiperbeaware.co.uk/brexit-timing-clarified-employment-law-set-to-continue-intact/

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