Prime Minister Theresa May has formally outlined her government’s plan on how they will safeguard the rights of EU nationals who live and work in the UK after Brexit. Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU contains proposals that will affect EU citizens who currently work in the UK and creates a new “settled status” dependent on their length of residency.

Pre-exit and the cut-off date

The plan reiterates that EU citizens are free to continue to work, and exercise their other rights, in the UK until the date of the exit from the EU. Employers can legally continue to employ EU nationals who currently work for them and offer new contracts of employment to those who apply for jobs until the exit.

After a cut-off date, the new statuses will take effect. The cut-off date has not been determined but will be no earlier than the 29th March 2017, the date Article 50 was triggered, and no later than the date of exit.

Settled status after the exit

Settled status will be available to EU nationals who have accrued five years’ continuous residence in the UK before the cut-off date. These individuals will receive indefinite leave to remain and can continue to live and work in the UK indefinitely.

This status will need to be actively applied for and the applicant will have to produce evidence of their five years’ residence at the time of their application. Employers may be required to supply employment documentation as part of this evidence, usually in the form of a signed and dated contract of employment.

A two year grace period will apply from the cut-off date during which the EU national will receive temporary leave to remain until they receive their residence document. The residence document will be necessary to show employers that the worker has permission to work legally.

To streamline the process, the government has announced they are intending to create a voluntary scheme where EU citizens can apply to achieve their settled status before the exit occurs. Once the exit happens, it will be mandatory to apply for permission to remain.

Those without five years’ residency

EU nationals who are living and working in the UK before the cut-off date with less than five years’ residency will achieve temporary status at this date. This status allows them to remain in the UK whilst they build their residency up to the required five years. Employers should ensure that those who are starting work for them now, and until the cut-off date, are provided with the correct employment documentation to allow them to apply for settled status as soon as they reach the five year residency requirement.

EU workers arriving after the cut-off date

These workers will only receive leave to remain in the UK for a temporary period, dependent on future immigration rules that will be put in place by the government. These rules are due to be announced in “due course” and early suggestion have included extending the current points-based visa system that applies to non-EEA nationals. These rules will be significant as they are likely to impose additional requirements on employers who are looking to employ EU workers and it could have a negative impact on the availability of these workers.

Whilst the policy proposals are important for employers who wish to see some clarity regarding their workers, the plan is an outline of the government’s stance before they have taken part in negotiations with the EU. As such, these proposals could be amended in the future. This issue is a priority for both parties and is likely to be the first settled issue of the Brexit proceedings.