05 Dec

UK workers in the EU – post-Brexit

This article was first written by Alex Padfield, Director of Hextalls for ABTA's Travel Law Today issue eight, which can be download at abta.com/travellawtoday

I decided to write this article as late as possible in the hope that by the time I did, the UK and EU would have managed to reach a deal and we would all know where we stood in relation to UK workers’ rights in the EU post-Brexit. My optimism was misplaced so I have set out what will happen if Boris’ deal is approved and what will happen if there’s no deal.

It is also worth having in mind that UK workers’ position will depend on whether they were living and working in the EU before Brexit or if they start working there after Brexit happens.

A deal
Transition Period – to December 2020
The Withdrawal Agreement implements a transition period, which will last until at least 31 December 2020. Anyone who is living and working in another EU state now, will have their position protected and their situation should be broadly unchanged. Workers will have a right of residency in an EU state if they have lived and worked there for five years.

Member States can ask UK workers to apply for residency and workers will have to do so not less than six months after the transition period ends. Workers will be able to continue to live, work and travel in the state they are currently in and freedom of movement will continue throughout the transition period. UK workers will also have the same rights as their EU colleagues when it comes to tax, discrimination on the grounds of nationality, conditions of employment, collective rights and the right for their children to receive education in the Member State if they are living there too.

So, broadly speaking, things should continue as they do now. This should also be the case for Norway, Liechtenstein, Iceland and Switzerland. These agreements mean that UK workers should be able to continue working unaffected if there is a deal.

Anyone who does not currently work in the EU should still be able to work there during the transition period. ABTA Members should check the Government’s country by country guidance carefully. Do not presume that even if we leave with a deal, things will be the same during the transition; check.

After December 2020
After December 2020, no-one knows what will happen because it depends upon what is negotiated. A no-deal situation could happen by default so Members should keep up to date with developments and read on!

No deal
If there is no deal, then things become more complicated. The UK will become what is called a ‘third country’ so far as the EU is concerned. It would then be up to each EU Member State to decide what rights to grant British citizens in their country.

So far, virtually all EU countries have put some measures in place covering workers’ rights if there’s no deal but these apply to people already living and working in those countries before Brexit. Broadly speaking, the 11 EU countries with more than 10,000 UK citizens (apart from Ireland) are all offering virtually the same rights to UK citizens as their citizens in the UK will be offered if there is no deal. Spain, Cyprus and Portugal will offer exactly the same as the UK is offering in reverse. The Government has already said that EU citizens living in the UK would have similar rights to those covered by the Withdrawal Agreement, so we can anticipate that even with no deal, not much should change for people already in country. The biggest changes will probably be for how long workers can stay and for how long family members will be able to move freely. For example, in France anyone intending to stay for more than a year will have to apply for residency (carte de séjour). And in Germany the deadline for applying to stay will be 30 June 2020. So, it is important not to be complacent.

For anyone who is proposing to travel to work in the EU post-Brexit, things will get a lot more complicated. People will need to fulfil the specific conditions laid down by EU law and the law of the particular Member State concerning third country nationals in order to live and work there. Work permits and visas will almost certainly be required and countries might put caps on the number of people who will be accepted. Some Member States have said they will be lenient for a period but there will be no unified approach and so ABTA Members cannot be complacent. For roles such as travel reps and tour hosts, Members might find that national rules and qualifications add unexpected barriers to who can work where. Social security rights may change too. UK workers may also find themselves having to pay tax and social security in the EU country where they are working.

It cannot be overstated how important it is to keep updated on developments and to prepare as far in advance as possible. Check the Government’s country by country advice and also check with the Member State itself and the European Commission website. Do this well in advance so you are well prepared.

Remember also, that if you currently rely upon the Posted Workers Directive to send people to work abroad, that will no longer apply, unless you establish a business in an EU/EEA Member State and hire the relevant staff there.

So, to summarise, even with a deal a lot of uncertainty will remain. ABTA Members should prepare well in advance: check now what the position will be if the UK ends up as a “third country” and consider preparing for that. Then you should be equipped to deal with all eventualities.

To keep up to date with developments, it is worth checking some useful websites such as the Government’s main Brexit page: www.gov.uk/find-eu-exit-guidance-business and also the regular ABTA guidance notes. And who knows whether, in a year’s time, we will still be waiting for Brexit!