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What Does Brexit Mean for the EU Citizens Working in Your Family Business?

on Friday, 16 February 2018.

Now that "sufficient progress" has been made on the terms of the UK's exit from the EU, EU leaders have agreed that talks can move on to the next phase of negotiations.

The second phase of negotiations will concentrate on the future relationship between the UK and the EU. But what does the agreement mean for EU citizens living in the UK and the family businesses that employ them? 

Citizens' Rights

The government and the EU have agreed that the rights of citizens will be enshrined in a Withdrawal Agreement (the Agreement), so that EU citizens and their family members in the UK and UK citizens living in the EU "can carry on living their lives broadly as they do now".

The key points of the Agreement:

  • Who is covered by the Agreement?
    The Agreement will protect those EU citizens who have been exercising free movement rights in the UK at the time of the UK's withdrawal from the EU on 29 March 2019. Family members living lawfully in the UK with an EU citizen relative at this point are also protected.

  • What will be the status of those covered by the Agreement?
    EU citizens and their family members who have already lived in the UK continuously for five years will be eligible to apply for 'settled status'. Those who have not been here for five years on the withdrawal date will be able to remain in the UK to build up five years' continuous residence and then apply for settled status.

    There will be a grace period of two years after the UK's withdrawal during which applications can be submitted. EU citizens and their family members who are resident on the date of the UK's withdrawal but have not yet lived here for five years will be required to apply for documentation confirming their right of residence.

  • How can settled status be lost?
    Once someone has been granted settled status, they will be permitted to be absent from the UK for up to five years without losing that status.

  • Which family members will be covered by the Agreement?
    The close family members of those protected by the Agreement, who live in a different country when the UK leaves the EU, will be permitted to reunite as a family at any time in the future. They will then be eligible for settled status.

    The Agreement will define close family members as spouses, civil partners and partners who can demonstrate that they are in a genuine long-term relationship, dependent children and grandchildren, and dependent parents and dependent grandparents. Children born or adopted to those covered by the Agreement after the UK leaves the EU will be protected. If an EU citizen covered by the Agreement marries, forms a civil partnership or their long-term relationship does not meet long-term partner definition until after 29 March 2019, their spouse/partner will need to meet the UK's Immigration Rules in force at that time in order to join them here.

  • How will these rights be protected and enforced?
    EU citizens' rights will be upheld by incorporating the Agreement into UK law and EU citizens will be able to take their case to UK courts. UK courts will follow EU case law that pre-dates UK's withdrawal and have due regard to relevant subsequent case law. After the UK leaves the EU, reference can still be made to the European Court of Justice for a legal view on the law in relation to citizens' rights on broadly similar terms to the current mechanism for a period of 8 years from the point at which the citizens' rights part of the Agreement takes effect.

Settled Status Applications

There will be a brand new process to handle applications for settled status. The government has stated that the new system will be "streamlined, user-friendly and draw on existing government data to minimise the burden on applicants to provide evidence." It has also confirmed that applications will not be refused on minor technicalities, that caseworkers considering applications will exercise discretion in favour of the applicant where appropriate and that it expects "the vast majority of cases to be granted, with refusals most likely to be because of serious criminality or if the person is not an EU citizen (or family member) or not resident in the UK".

A settled status application will cost no more than the fee paid by British citizens to get a passport. Those who already have permanent residence documentation will not be charged, but will still need to apply through a simpler process than the full scheme.

The new scheme for applications will be launched in the second half of this year, with qualifying individuals and their family members invited to apply on a voluntary basis. More information on this new process will be released by the Government in due course.

What This Means For EU Citizens and Their Employers

This announcement is subject to the caveat that "nothing is agreed until everything is agreed", meaning that if agreement cannot be reached on the future relationship between the UK and EU then the process outlined above may not be implemented. However, it certainly appears that there is sufficient goodwill on both sides for these arrangements to be ratified. This announcement will therefore hopefully provide comfort to EU citizens who have already made the UK their home. Family businesses who currently employ EU citizens are also likely to welcome the news that in the overwhelming majority of cases those existing employees will be able to remain in the UK and continue in those roles with little administrative burden.

While some EU citizens will object to being required to apply for status, it is hoped that the new scheme will be sufficiently streamlined and user-friendly that it is not such an onerous process.

Family businesses in the process of recruiting EU citizens will also be heartened to note that EU citizens arriving between now and the UK's withdrawal in March 2019 will be able to remain post-Brexit. Immigration schemes for EU citizens who wish to come to the UK after Brexit will be discussed as part of the next phase of negotiations on the future relationship between the UK and the EU.

The government is still advising EU citizens living in the UK that there is no need for them to do anything at this stage. However, it is still possible for applications for Permanent Residence documentation to be submitted. That documentation will be converted into settled status documentation under a streamlined process once that scheme has been launched. Additionally, Permanent Residence documentation is still a requirement for EU citizens wishing to naturalise as British citizens.

For further information or advice, please contact Tom Brett Young in our Immigration Law team, on 0121 227 3759.

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