Brexit negotiations provide some festive cheer for EU nationals and employers

By Gerwyn Davies, Senior Labour Market Analyst

Former UK Prime Minister Harold Wilson once famously said that a week is a long time in politics. After a dramatic week of various twists and turns, Prime Minister Theresa May and Jean Claude Juncker, President of the European Commission, shook hands on a deal in the early hours of 8 December to allow progress to the next stage of Brexit talks. For HR managers, the agreement is a timely and potentially significant milestone because it provides a lot more detail and certainty about the current and future status of EU nationals that was not known even a week before. At the same time, it should be stressed that this agreement has yet to be ratified by EU leaders. As we’ve seen, the path to Brexit is not always smooth, but this is certainly a positive development in providing assurances on key workplace concerns.

The agreement builds on previous commitments by the UK Government and contains many of the policy recommendations proposed by the CIPD earlier this year. Maintaining a soft border between Ireland and Northern Ireland was a significant part of the agreement, and my Irish colleagues have provided a more detailed analysis of that aspect of the agreement here.

As far as the matters of immigration are concerned, the government has extended its commitment to allow indefinite stay for EU nationals with five years’ continuous service to include those who arrive between now and March 2019, provided that they stay in the UK continuously for five years’ beyond 2019.

A further positive development is that EU citizens who arrive in the UK after 2019 can still live, work and study, with a reciprocal arrangement that would see UK citizens enjoy the same rights in the EU for a limited period — likely to be around two years. The rules for this ‘transitional period’ have yet to be worked out. There is also good news for family members who want to join their loved ones as they are able to apply for settled status before March 2019.

Another encouraging aspect of the agreement is the modest cost of the ‘settled status’ document, which will be the equivalent to the cost of a British passport. This document will allow EU citizens to live in the UK indefinitely and have access to healthcare, pensions and other benefits. It may therefore solve the current dilemma facing HR managers on whether to advise, and in some cases provide, financial assistance for EU nationals to obtain permanent residence and/or UK citizenship, avoiding both trouble and cost for all involved. This is especially the case given that those who have permanent residence will later have to exchange it for a settled status document through a ‘simple process’ that will be free of charge.

On a practical level too, both sides have agreed to a ‘transparent, smooth and streamlined’ application process, which should reduce the risk of applications being rejected. Certainly for non-EU nationals, it isn’t uncommon to see their applications turned down due to simple errors or omissions; or as in the case of my Australian wife, through a banking error that was entirely the fault of the bank. Additionally, analysis from the Migration Observatory also suggests that in the 15 months after the referendum, approximately 34,000 (14%) applications were rejected and a further 20,000 (9%) were sent back to applicants as invalid or incomplete. To avoid this situation, a caseworker will contact an EU national to fix any error and advise if additional evidence is needed from them, before a decision on their application is made.

Overall, these are encouraging developments, especially if you consider how the arrangements compare with those faced by non-EU nationals who pay considerably higher sums to remain in the UK indefinitely. There are very good reasons of course for these relatively generous arrangements, not least the proximity of the EU and the size of the UK economy. Let’s hope therefore that EU leaders will soon ratify the agreement to provide greater certainty and security for EU nationals and that the UK will apply some of these principles to non-EU nationals.

Our recent ‘Legal guide to managing a migrant workforce’ provides practical help for employers and staff on these matters. Explore the CIPD Brexit Hub more widely for other information and resources on how Brexit will impact the world of work.

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