Backhouse Jones Watermark

BREXIT – Working out worker’s rights

07 December

It is written into the law of the UK that the Member State will exit the European Union at 11pm on 29 March 2019. This has caused a multitude of uncertainty for workers of both UK nationality and EU nationality, as the fate of their residency status is speculated about.

Progress has been made in this area. The 27 leaders of the other EU Member States have recently approved the draft Withdrawal Agreement, negotiated by Theresa May’s Government, and taken another step closer to knowing for definite what will happen when the UK leaves.  That being said, the Agreement still must survive a trip through the UK Parliament, where it must be approved by the majority in order for it to remain in place.

Despite this, we do have a rather firm grasp on the implications for EU national workers, having reviewed both the Withdrawal Agreement approved by the EU-27 and the Statement of Intent made by the Home Office. The position appears to be the same regardless of whether Parliament approves the Agreement or not.

There will be an Implementation Period following the UK’s exit from the EU, running from 30 March 2019 – 31 December 2020. During this period there will be little change to the rights and treatment of EU nationals living in the UK. What is important, however, is what happens after the Implementation Period.

EU nationals hoping to remain in the UK, enjoying all the rights they do currently, must apply for and secure ‘settled status.’ EU citizens with settled status (and their family members) will have the same access as they currently do to healthcare, pensions and other benefits in the UK. In order to secure settled status, the EU national in question must have been continuously resident in the UK for five years.

‘Continuously resident’ in this context means that the individual in question has not been absent from the UK for more than six months in total in any twelve-month period. These absences are considered on a rolling basis, as oppose to separate twelve-month periods.


EU citizens and their family members who arrive by 31 December 2020, but who will not have been continuously resident in the UK for five years, will be eligible for ‘pre-settled status,’ enabling them to stay until they have reached the five-year threshold. EU citizens and their family members with pre-settled status will also have the same access as they currently do to healthcare, pensions and other benefits in the UK.

A new entity called the Independent Monitoring Association (“IMA”) will be established by primary legislation to ensure that citizen’s rights are protected, with the EU Settlement Scheme being deployed monitored by the Independent Chief Inspector for Borders and Immigration (“ICIBI”).

An application under the EU Settlement Scheme will cost £65 – which is the same as the current fee for a permanent residence document – and for children under the age of 16 the fee will be £32.50. The scheme will be open fully by 30 March 2019 and effected workers should be aware.

There will be four requirements for a valid application – (1) application via the digital process on GOV.UK, (2) payment of the required fee, (3) proof of identity and nationality, and (4) enrolment of facial image. Family members of EU citizens who are living in, or join that citizen in the UK before the Implementation Period Deadline will be eligible for status under the EU Settlement Scheme.

The scheme will also be open to EU citizen and non-EU citizen close family members, resident overseas on the date of the Implementation Period Deadline. An EU citizen who is a resident in the UK by the date of the Implementation Period Deadline will be able to be joined at any point thereafter by close family members resident overseas, as long as their relationship existed on the date of the Implementation Period Deadline and continues to exist.

Evidence of settlement status will be given in digital form, with non-EU citizen family members in the UK issued with a biometric residence document, a key right to work document.

Settled status – the holder will be able to be absent from the UK for any reason for a period of five consecutive years before their status lapses.

Pre-settled status – Will need to retain their continuous residence in the UK in order to qualify for settled status.

If you require any further information please contact a member of our team on 01254 828300.

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