The determination of the rights of 3.5 million EU nationals currently living in the UK and 1.2 million UK nationals currently living in other EU countries continues to be one of the key issues in the UK's Withdrawal Agreement from the European Union and a primary concern for both affected individuals as well as for businesses keen to retain workers, skills and talent post-Brexit.
Statements from Downing Street have indicated that an agreement is close and "EU citizens living lawfully in the UK today will be able to stay [post-Brexit]" with an easy route to settlement (also known as permanent residency). However, despite agreement that any deal on citizens' future legal status and rights must be reciprocal, the EU's chief negotiator, Michel Barnier, has recently stated that there are still "fundamental divergences" on the issue of citizens' rights
EU nationals in the UK before Brexit
For EU nationals and their family members already in the UK, the EU seeks an unconditional lifetime guarantee the rights currently enjoyed including continued rights to residency, work, establishing a business, access to healthcare, social security and pensions.
The UK has said that it intends to grant EU nationals and their spouses and children who have been exercising free movement rights in the UK for five years UK "settled status". Settled status would allow EU nationals to be treated as British citizens in terms of residency, access to employment, healthcare, social security and pensions. However, EU nationals who have been legally resident in the UK for less than five years will have to apply for temporary status in order to remain in the UK, provided certain criteria are met. Although the criteria to be met has yet to be confirmed, it is currently proposed that there will be little change to the current criteria for the exercise of freedom of movement rights in the UK. Once EU nationals have been lawfully in the UK for five years, they could then apply for settled status.
UK nationals in the EU before Brexit
For UK nationals already living in another EU country, the EU seeks to permit them to remain only in the EU state in which they currently reside. As arrangements for UK nationals in the EU will mirror the arrangements for EU nationals in the UK, the Government is likely to agree to UK nationals who are not yet permanently resident in their host EU state to be subject to a temporary immigration process until such time that they can apply for settled status.
EU nationals who arrive in the UK after the cut-off date – likely to be between 29 March 2017 (the date the UK served its Article 50 notice to leave the EU) and the date on which the UK actually exits the EU – are likely to be subject to new immigration rules and a mandatory registration process. The immigration system to be imposed for workers is not yet clear but could be similar to the Tier 2 immigration system currently in place for non-EU nationals, which require a job offer to be made prior to arrival in the UK and proving that a British or settled worker cannot be found for the role.
Again, the treatment for UK nationals seeking to live and work in the EU post-Brexit will mirror the treatment of EU nationals in the UK, and so British businesses sending UK nationals to EU states for work can expect similar immigration hurdles to overcome.
How can businesses prepare?
In this uncertainty, companies, whether they operate in the UK or the EU, must be ready to act quickly to respond to the imposition of new immigration regimes post-Brexit.
Organisations should conduct a full audit of their workers both in the UK and in the EU to identify employees who may be affected by new post-Brexit immigration concerns. Where an EU-national worker in the UK or a UK national worker in the EU is eligible to apply for permanent residency, it is likely that making such application before the UK leaves the EU will assist to preserve working rights. If an application post-Brexit to obtain settled status becomes a requirement, the process should then be light-touch.
If any EU-national worker in the UK or UK national worker in the EU is eligible to apply for citizenship of their host state before Brexit, making such applications, if successful, will ensure working rights are preserved and eliminate uncertainty. Workers should ensure that both their country of origin and their host country permit dual-nationality before applying for a second citizenship.