Uncertainties for EEA nationals living and working in the UK (and their employers) look set to remain in the short term, following the release of the UK government’s “opening offer” to Europe on the rights of EU citizens after Brexit.

The government has sought to reassure EEA nationals already living and working in the UK that, following Brexit, they will be entitled to “settled status” provided that they have completed 5 years’ lawful residence at the (as yet undecided) cut-off date. Those granted settled status will be able to live, work, study and claim benefits just as they can now. It will come as a relief to many that the Home Office will no longer require evidence that EU citizens who weren’t working have held comprehensive sickness insurance throughout the 5-year period.

Frustratingly however, those who already have a document certifying permanent residence status (which is currently granted after 5 years’ continuous residence) will be required to apply again for settled status.

EEA nationals who have not spent 5 years in the UK as at the cut-off date will be given “temporary leave” and allowed to build up five years’ residence.

After Brexit, EU nationals will no longer have the right to bring a spouse to live in Britain with them unless they earn a minimum of £18,600 per annum.

The UK government’s position leaves open a number of important questions for employers and their EEA national employees, including:

• What exactly happens if an employer wishes to transfer an EEA Citizen to the UK after the cut-off date, or hire a new EEA Citizen, what will they need to do? The government is due to publish further information about this in due course. This puts employers who are seeking to attract and retain staff from across the EEA in a difficult position.
• The cut-off date is undecided but is likely to be between 29 March 2017 and 29 March 2019
• The government is proposing that these rights will be administered by the UK courts but this is unlikely to be palatable to Europe, who will want the rights to fall under the supervision of the European Court of Justice.
• How will the government cope with administering the settled status? It will be very arduous, with potentially c.3.2 million applications to be handled. It is currently unclear exactly when the application process will open and what that process will look like.

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