The government has now published its proposals on EU worker rights post-Brexit. A number of MEPs have described the UK's offer as a damp squib which falls "far short" of what they are entitled to. So what are the contentious issues?
There has been a lot of uncertainty for EU workers following the UK's decision to leave the EU last year. Ever since the outcome of the referendum, there has been pressure on the both sides of the channel to set out detailed plans for EU worker rights in the UK and for those UK workers in the EU. Last week Theresa May set out the UK's offer on EU worker rights but this is subject to a reciprocal arrangements for UK citizens currently living in Europe. The offer has not been well received with a joint letter from a number of MEPs threatening to block any Brexit deal unless EU citizens are guaranteed the same rights post-Brexit as they currently enjoy.
At the moment, there is no change to the existing position. EU nationals and those from Switzerland, Norway, Iceland and Liechtenstein all have the right to live and work freely in the UK. EU workers have the same access to benefits as UK citizens and can bring family members to the UK regardless of their nationality. Those family members also have the right to work here.
Post-Brexit it is proposed that all existing EU workers in the UK will have to apply for permission to work in the UK. There are substantial numbers of EU workers in the UK and it is proposed that EU workers in the UK have a two year grace period after Brexit to make their applications. However, this period may need to be extended given that, if all EU nationals currently in the UK apply for this status, the Home Office would need to process well over 4,000 applications per day to meet this target.
The rights EU workers will have look similar to now but slightly different language applies. The government has stated that EU worker rights will be determined with reference to a specified date. This specified date is, as yet, not set. The earliest date will be 29 March 2017 when Article 50 was triggered (trigger date). The latest date will be 29 March 2019 when the UK formally leaves the EU (leave date). EU worker rights will depend on whether they are working in the UK prior to the specified date or arrive after it. The government has recognised that anyone arriving before the date trigger date had a reasonable expectation that they would be able to stay permanently.
EU workers who have been working in the UK for 5 years before the specified date will be able to apply for a new settled status in the UK. This means that they will have the right to live and work in the UK indefinitely. They will have the same benefits as they do now. If an EU worker already has a Permanent Residence card they will still have to apply for the new status but it is likely that the application for settled status will be quicker than if they do not have the card.
EU workers who have been working in the UK for less than 5 years before the specified date will be allowed to apply for settled status if they complete the 5 year requirement during the 2 year grace period after Brexit. If they still have less than 5 continuous years in the UK they can apply for temporary status. This will be long enough to allow them to remain until they have completed 5 years and then they can apply for settled status.
EU workers who wish to come to the UK after the specified date will be able to stay temporarily while they regularise their status but with no guarantee that they will be able to stay.
So what is the difference between the UK's offer and EU expectations?
The EU's position is that EU workers living in the UK should have no fewer rights than they currently have. All EU worker rights in the UK are under the jurisdiction of the European Court of Justice. The UK government has made it clear that it will not accept that the ECJ will have any jurisdiction in the UK after Brexit. The negotiators will need to find a solution to this problem which is acceptable to both sides.
The second major stumbling block appears to be over the rights of family members of EU citizens arriving after the specified date. Unlike the present situation, family members will not have the automatic right to join an EU worker in the UK, even where the EU worker has established settled status, unless the family member joined the EU worker prior to the leave date. Family members of EU workers will be required to apply to come to the UK. So, as would be the case with family members of UK nationals; if applicable, the same rules as to meeting the minimum income requirements and demonstrating the ability to speak English will be applied.
How do I help my EU workers now?
The situation is still far from clear and may well change depending on the course that the negotiations take. Some EU workers have been applying for a permanent residence card in the hope that this would be enough to guarantee rights post-Brexit. However, the government's stance is that even those EU workers with permanent residence status will be required to apply for the new settled status.
As an employer, you can assist your employees by providing them with up to date information as the situation changes. You cannot advise your employees as to what they should do but you can provide them with the most up to date information to allow them to make an informed choice. This could be in the form of regular briefings or an FAQ document. Providing any level of support for employees through a very uncertain time is to be recommended.