Brexit: Implications for NI Employers of EU Nationals

The UK is due to leave the EU on 29 March 2019. With the prospect of a no deal looking increasingly more likely, employers of EU Nationals in Northern Ireland need to consider the status of their workers and their right to continue working in the country after Brexit. In this article Ciara Fulton, Partner in Lewis Silkin, considers the potential ramifications for employers of both a no deal Brexit and Brexit under the recently defeated Withdrawal Agreement.

Free Movement with the EU

At present citizens of the EU enjoy rights of free movement which enable them to live and work in any other EU member State.

Withdrawal Agreement

When the UK leaves the European Union theses rights will end. However, under the Withdrawal Agreement, UK nationals residing in EU Member States and EU citizens residing in the UK will maintain their residency rights during the transition period (until Dec 2020) and, to a certain extent, after it. This means that during the transition period, EU citizens and UK nationals, as well as family members, can continue to live, work or study as they currently do and benefit from the protections of EU law, such as the right to equal treatment, on the same basis as host state nationals. 

Frontier workers and frontier self-employed workers (those who are currently nationals of one MS, reside in another MS, and work in a third MS) are also protected under the Agreement, as is the recognition of professional qualifications.  EU nationals who come to live and work in the UK prior to the end of the transition period will have the same right to apply for settled status or permanent residency as EU nationals who currently reside in the UK.

The Protocol to the Withdrawal Agreement states in its Preamble that it is without prejudice to the rights, opportunities and identity that come with citizenship of the Union for people of NI who have asserted their right to Irish Citizenship under the Good Friday Agreement. This means that many citizens of NI will continue to enjoy rights of free movement under EU law as Irish citizens, which might not otherwise be available to them as UK citizens, depending on what agreement is ultimately reached between the EU and UK.

In addition, Article 5 of the Protocol provides for a continuation of the Common Travel Area between Ireland and the UK which provides that the UK and Ireland may continue to make arrangements between themselves in relation to the movement of persons between their territories.  The Common Travel Area allows free movement of British and Irish citizens between the UK, Ireland, the Channel Islands and Isle of Man and provides access to various government services in each country. It does not provide any rights to travel to the rest of the EU, only within the Common Travel Area itself.

No Deal

On 6 December 2018, the Government published a policy paper which guarantees to protect the rights of EU citizens and their family members living in the UK by 29 March 2019, even if the UK leaves the EU without a deal.

The paper confirms that in a no-deal scenario the UK would continue to run the EU Settlement Scheme for those EU nationals and their family members resident in the UK by 29 March 2019 (not 31 December 2020), as there would be no agreed transition period. EU citizens would have until 31 December 2020 to apply for settled status under the scheme.

Until then, EU citizens could rely on their passport or national ID card to evidence their right to reside in the UK. The UK would also continue to honour the right of those who obtain settled status under the scheme to be able to leave the UK for up to five years without losing their right to return.

Other differences in a no-deal scenario would include:

• The deadline for applications under the EU Settlement Scheme would be 31 December 2020, not 30 June 2021, as there would not be an agreed six-month grace period.
• EU citizens with settled status could be joined in the UK, but only up to 29 March 2022, by existing close family members who were living overseas on 29 March 2019 provided the relationship existed at that time and continues to exist when the family member applies.
• The appeal rights open to EU citizens to challenge a refusal of status under the EU Settlement Scheme would be more limited as the ECJ would not have any jurisdiction in the UK.

Immigration Policy Post Brexit

On 19 December 2018 the UK published its long-awaited White Paper on the Government’s immigration policy post Brexit. The new system will come into play immediately after the UK leaves the EU. It will be phased in, during an Implementation Period (until 31 December 2020), with further reforms to follow. In the meantime, the UK will implement the EU Settlement Scheme which gives EU citizens security as to their future status.

During the Implementation Period, the EU Settlement Scheme will give EU citizens already in the UK, and also those who arrive in the UK during the Implementation Period, the opportunity to apply for settled status in the UK. The EU Settlement Scheme allows EU citizens to obtain a specific, individual permission to continue living and working in the UK after the Implementation Period as follows:

• EU citizens who have lived in the UK continuously for 5 years will be eligible for settled status;
• EU citizens who arrive before the end of the Implementation Period, but who have not been here for 5 years, will be eligible for pre-settled status, enabling them to stay until they have accumulated 5 years, after which they may apply for settled status;
• EU citizens with settled status or pre-settled status will continue to be able to work, study and establish a business in the UK as now;
• Frontier workers (EU citizens who reside in one state, and work in the UK) will continue to be able to enter the UK to work under current rules, if they started this work before the end of the Implementation Period.

Common Travel Area (CTA)

The Government has confirmed that Common Travel Area (CTA) and associated rights between the UK, Ireland and the Crown dependencies will be unaffected by Brexit. Irish and British citizens will continue to enjoyfreedom to travel and work within the CTA without the need for immigration controls or residence/work permits. Irish citizens will not need to obtain settled status in the UK.

Post Implementation Period Immigration

1. After the Implementation Period, there will be a single skills-based immigration system, which will require anyone who wants to work or study in the UK to obtain permission. This will give access to highly skilled and skilled workers from all countries, who will need a sponsor.
2. Under the new system, there will be no cap on the numbers of skilled workers and there will be no requirement to carry out a resident labour market test as a condition of sponsorship.
3. The Government intends to engage with businesses and employers as to what salary threshold should be set for skilled workers and whether the threshold at £30,000 should be retained.
4. The new skilled route will include workers with intermediate level skills, at RQF 3-5 level (A level or equivalent) as well as graduate and post-graduate.
5. There is to be no immigration route specifically for low skilled workers. However, as a transitional measure, temporary short-term workers will be permitted to come to the UK for up to 12 months, with a cooling-off period of a further 12 months. This route will only be open to nationals of specified low risk, countries with which the UK negotiates migration commitments.
6. There will be a full review in 2025 by the Government to consider whether there should be any continuing facility for short-term workers to come to the UK.
7. The UK has agreed that it will discuss provisions relating to mobility with the EU. Any agreements reached with the EU regarding mobility will be incorporated in its future system.
8. The UK would look to offer similar arrangements to other low-risk countries with which it agrees “deep” trade agreements in future.
9. Th UK is willing to expand, on a reciprocal basis, its current range of “GATS Mode 4” commitments which it entered into as part of EU trade deals which cover independent professionals, contractual service suppliers, intra company transfers and business visitors.
10. Visitors coming to the UK for short-term business reasons will be able, as now, to carry out a wide range of activities, including permitted paid engagements. 

Conclusion

The uncertainty surrounding the terms on which Britain will leave the EU is highly undesirable for businesses, employers and employees alike. However, it is important that businesses prepare for both eventualities and take steps to protect those parts of their workforce that may be most affected.