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Global HR Lawyers

The Art of the Brexit Deal

11 December 2017

On Friday the UK Government and the European Commission issued a joint report on the rights of EU citizens and their family members in the UK following the conclusion of the first stage of Brexit negotiations.

A lot of the detail in the joint report is familiar to anyone who has been keeping up with the series of policy papers and speeches drip-fed to us by the Government over the last few months. The intention that all EU nationals and their family members who have been in the UK for five years are to register for indefinite leave to remain (ILR) has been known for some time. We now have certainty that those EU nationals who arrive before the date we exit the EU will be able to stay in the UK long term and will be able to apply for indefinite leave to remain. The developments will provide much needed reassurance for those who have arrived to work in the UK after the date we triggered Article 50 and for those businesses looking to relocate staff in the upcoming months.

Time to put a ring on it?

The report provides clarification on the rights of family reunion for EU nationals and it suggests that the status quo will be maintained after we leave the EU. Europeans who arrive before we exit the EU will still be able to bring direct members of their family to reside in the UK on the same terms as they do now, which are much more beneficial than those under UK immigration law. This will also apply to unmarried partners who are in a relationship before we exit and to children born abroad post Brexit to current residents.

Don’t be gone too long…

The report also reveals that the indefinite leave to remain status that EU nationals will enjoy will be more durable that the ILR we know currently. It proposes that EU nationals will not lose their ILR status as long as they are not absent from the UK for five years or more, rather than the two years that is required under UK immigration law. Again this will be welcomed by UK employers who may have anxious European employees concerned about the effect of secondments abroad on their long term security in the UK.

The Home Office 2.0

What is remarkable to anyone who has any experience of the Home Office’s treatment of visa applicants is the language used to describe how the Government will administer the new ILR process. The Government has fully committed to ensuring that the ILR registration process must be ‘transparent, smooth and streamlined’. The application form will be ‘short, simple, user friendly’ and the Government must ‘work with applicants to help them prove their eligibility’. If a simple mistake is made the Government must give the applicants the opportunity to remedy it. There will also be no need for EU nationals to rush to apply. They will have at least two years following withdrawal to acquire the new status and those who miss the deadline for a good reason must only be met with a ‘proportionate’ response.

This collaborative approach to decision making is a positive step forward for the Home Office and we will keep our fingers crossed that they keep their promises. Our advice is to err on the side of caution and always seek independent advice before applying, if you are unsure of your rights or entitlements.

Apply now or wait?

We also have confirmation that those EU nationals who have already acquired permanent residence will be able to simply ‘swap’ their documents for the new status. They will only be subject to an identification and security check and need only confirm that they are still resident in the UK. We have been assured that they will not be charged for this. Our advice for EU nationals currently considering a permanent residence application is to go for it. The application process has been simplified, the fee is only £65 and you are likely to have a much easier ride when the new ILR registration system is in place.

Signs of a softer Brexit?

The news on Northern Ireland is less clear. We still do not have a concrete plan as to how the UK Government will be able to control migration from the EU without having a hard border between Ireland and the North. We now know that the UK Government has a ‘get out of jail free card’; the concept of ‘full alignment’. In a nutshell, this means that should an agreement not be reached on the border, we will leave the single market and customs union but continue to abide by all its rules meaning that no real practical effect is felt. Whether this will mean that the UK will remain fully aligned with the EU’s concept of free movement as well is still up for negotiation. The fact that the door has been left open for this shows just how much the Government has had to concede to break the deadlock, and that the harsh reality of the effects of a hard Brexit may be hitting home.

The next step is for the European Council to sign off on the deal. But with negotiations now moving on to issues of trade, significant changes to the terms of the deal are unlikely. The ILR registration system is likely to be up and running later in 2018. Employers should now inform their EU staff about what is on the horizon to afford them the opportunity to consider their options fully.

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