Employers must understand the rights of EU nationals post -Brexit

The UK Government announced in August that 1 million people have been granted settled or pre-settled status under the ‘settlement scheme’ that has been established for EU nationals who wish to remain in the UK. That includes 50,000 EU citizens and their family members living in Scotland – so the message is getting out about the need to apply. But will EU nationals have similar rights to those they enjoy now when it comes to living and working in Scotland after Brexit?
Employers across Scotland need to be aware of how the rights of EU nationals will change after Brexit.Employers across Scotland need to be aware of how the rights of EU nationals will change after Brexit.
Employers across Scotland need to be aware of how the rights of EU nationals will change after Brexit.

Much has been said about the way in which the settlement scheme will protect the rights of EU nationals after Brexit. But make no mistake, the rights of EU nationals will change after Brexit and employers across Scotland should be aware of the differences.

Until now, EU nationals have been able to come and go – moving freely within the EU with flexibility to live and work wherever they like. Businesses operating in the UK and internationally have benefitted from that flexibility – seconding staff throughout the EU without having to consider employees’ immigration status. That will change under the settlement scheme.

Those with pre-settled status don’t have a permanent right to stay in the UK and so long term absences from the UK may jeopardise their right to be able to obtain settled status at a later date. Absences which (cumulatively) exceed six months in any period of a year will generally break the period of residence needed to qualify for settled status.

Elaine McIlroy is a partner and immigration and employment expert at Brodies.Elaine McIlroy is a partner and immigration and employment expert at Brodies.
Elaine McIlroy is a partner and immigration and employment expert at Brodies.

There are some exceptions – a single absence of up to 12 months for pregnancy/childbirth, serious illness, study, vocational training or an overseas posting may be permitted. But, for example, an international assignment to an overseas group company for 18 months would break a period of leave and would mean that the person will not qualify for settled status.

The second key point is that EU nationals and their family members have just one opportunity to qualify for settled status. Those who ‘break’ their residence in the UK will not have a second shot at qualifying – with their rights reduced to being allowed to return to the UK until their pre-settled status expires.

The new post-Brexit world will therefore be different. The new rules might impact some international secondments and careful planning will be needed to avoid someone inadvertently losing their right to work in the UK in the future.

The settlement scheme will of course operate whether or not there is ‘a deal’. But a no-deal Brexit will be significant in terms of the right to work. If the UK leaves the EU on 31 October without a deal, it is likely that EU nationals will have the option to apply for ‘European Temporary Leave’. If implemented by the new UK Government as planned, that will allow people to stay in the UK for up to three years only – a non-extendable visa with far more limited rights.

So employers recruiting EU nationals over the coming months might want to have EU nationals arrive in the UK before 31st October, if that’s feasible.

Elaine McIlroy is a partner and immigration and employment expert at Brodies. For more information, visit www.brodies.com

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