The consequences of Brexit for "free movement of workers"

On 24 December 2020, after months of consultation, the European Union (EU) and the United Kingdom (UK) reached a trade agreement on the arrangements that will apply from 1 January 2021. The trade agreement prevented the feared 'hard' Brexit. Until 31 December 2020 a transition period applied, during which all EU rules and laws still applied to the UK. The transition period has now ended and the new agreements are in force. This article discusses the main rules and consequences in the field of 'working and living', both of British citizens towards the Netherlands and Dutch citizens towards the UK.

An obvious consequence of the Brexit is that the fundamental EU rights 'free movement of workers' and 'free movement of services' no longer apply to and with the UK. This includes the travel and residence rights of workers, their right to work in another EU member state and the entry and residence rights of their family members. EU nationals may settle anywhere they like within the EU and may also continue to live in the other EU Member State in the event of unemployment or illness. These principles and core principles of the EU no longer apply to the UK.

For employees who were already working in the UK or vice versa before 1 January 2021, little will change. They will have to take a number of steps to secure their position, but their (acquired) rights will largely remain in place. This was already agreed in the so-called withdrawal agreement between the EU and the UK in November 2019.

Britons working and living in the EU

One of the biggest tangible changes of the Brexit is the rules that apply to working and living. Now that there is no longer 'free movement of workers', Britons (and vice versa for Europeans in the UK) are subject to conditions that they must meet in order to live and work in the UK.

The UK is now a 'third country', so Brits will be subject to the same immigration system as other third countries in the EU. In the trade agreement separate arrangements were made for Brits who were already working and living in the EU before 1 January 2021.

In essence, two situations are possible if we look at the Netherlands:

  • Britons who were already working and living in the Netherlands before 1 January 2021.

British employees and self-employed persons who were already working and residing in the Netherlands before 1 January 2021 are covered by the withdrawal agreement concluded by the EU in 2019, before the UK left the EU. An exception has been made for them. In principle, they do not need a work permit. However, they do need to apply for a new residence document from the IND. This is possible until 30 June 2021. After that, the new rules will apply. It is advisable to point this out to your employees for whom this is of importance.

  • Britons who came to work and live in the Netherlands on or after 1 January 2021.

Employees who enter the employment of a European employer on or after 1 January 2021 fall under the new rules. As a starting point, these employees must apply for a work permit (there are some exceptions). Depending on the duration of the stay, the employee must apply to the UWV for a work permit (for stays up to 90 days) or a combined residence and work permit (for stays longer than 90 days). In most cases, self-employed persons 'only' need a residence permit.

However, there are exceptions to the above rules, for example for highly skilled migrants or employees who live in the United Kingdom but sometimes work in the Netherlands.

EU citizens working and living in the UK

The freedom to travel and work within the EU was one of the main arguments the UK put forward against EU membership. British immigration rules are therefore much stricter than the (Dutch) counterpart discussed above. However, more lenient rules apply to Europeans who were already living (and working) in the UK before 1 January 2021. Therefore, also here a distinction can be made between two situations:

  • EU citizens who were working and living in the UK before 1 January 2021.

EU citizens who can prove that they were living in the UK before 1 January 2021 can easily apply for a residence permit. However, residence status is conditional if they have been living in the UK for less than five years. EU citizens (and family) must arrange this no later than 30 June 2021. Otherwise, the new rules are likely to apply. Again, it is advisable to make your employees aware of this for whom this is important.

  • EU citizens who came to work and live in the UK on or after 1 January 2021.

EU citizens coming to the UK after the transition period are covered by the new UK immigration system. The rules of that system are much stricter than those of the Netherlands. To qualify for a British visa, an employee must, among other things, have a job (offer) in his/her pocket. There is also a requirement to earn a certain minimum gross annual salary and the EU citizen must have sufficient command of the English language.

Again, however, there are (exceptional) rules for specific cases, such as care workers, employees with unique skills (so-called 'global talent') and EU citizens who come to fill a job where the UK has a shortage of personnel.

Do you have any questions about this post or other national or international aspects of employment law? Please feel free to contact the employment law lawyers of SPEE advocaten & mediation.

SPEE advocaten & mediation Maastricht