employment

Employment & Pensions

Brexit from an employment law perspective
13 January 2021
13 January 2021

On 31 January 2020, the United Kingdom ("UK") left the European Union ("EU"). This started a transition period during which all EU rules and laws remained in force for the UK. So nothing changed at that time for workers and businesses. During the transition period, the EU and the UK negotiated the details of their future relationship. At the end of December 2020, the EU Member States and the UK parliament approved the EU-UK Trade and Cooperation Agreement.

This news update highlights Brexit's employment law implications by discussing the position of British expats working in the Netherlands and Dutch expats working in the UK.

EU nationals versus non-EU nationals

EU nationals enjoy freedom of movement within the EU. They do not need a residence or work permit to reside or work in another EU country. EU nationals may reside in another EU country for three months without complying with any conditions or formalities. After three months, they can only legally reside in another EU country if they have sufficient means to support themselves and their family members. After five years of legal residence, EU nationals can apply for a permanent residence permit.

Non-EU nationals can only reside and work in an EU country if they have a valid residence and work permit. A short stay visa of up to 90 days can be obtained for a short visit to an EU country for business purposes. Non-EU nationals are allowed to work in the Netherlands if they have a work permit, an EU Blue Card or they have been admitted as a highly skilled migrant.

British expats in the Netherlands

Since 1 January 2021, all British expats in the Netherlands must apply for a regular residence permit for a fixed or indefinite period, even if they already have a permanent right of residence in the EU. Expats will be actively invited to submit their application.

No distinction will be made between British expats who came to the Netherlands under EU law during the transition period and British expats who were already working in the Netherlands before 31 January 2020.

New British expats who come to the Netherlands to work after the transition period, i.e. after 1 January 2021, are treated as third-country nationals (persons with a nationality other than that of one of the EU member states) and must hold a valid permit to reside and work in the Netherlands. A mitigated regime applies to these British expats, similar to expats from the United States and Japan. This means that they do not require a provisional residence permit (entry visa) and are exempt from the obligation to participate in a civic integration programme.

British cross-border workers living in the UK and working in the Netherlands (or vice versa) will also be able to work under EU conditions after the transition period.

Impact on the employment law position
The employment contract of British expats in the Netherlands will often be governed by Dutch law. EU law is incorporated into Dutch employment law. The legal position of British expats in the Netherlands will therefore not change after Brexit.

Dutch expats in the UK

Until 1 January 2021 (and also during the transition period), as EU nationals, Dutch expats were free to live and work in the UK. For non-EU nationals there were four main types of visas: seasonal workers, students, skilled workers and high-value immigrants. In order to obtain a visa, immigrants must meet various requirements.

A points-based immigration system now applies to both EU nationals (except Irish nationals) and non-EU nationals. This new system is not relevant to the current Dutch expats in the UK and the expats who settled there during the transition period.

Dutch expats already living and working in the UK must apply for 'settled' or 'pre-settled' residence status within six months of 1 January 2021, i.e. no later than 30 June 2021. To acquire settled status, expats must have already resided in the UK for five years and at least six months each year.

Dutch expats who arrived in the UK during the transition period also have the right to reside and work there and must apply for pre-settled residence status no later than 30 June 2021.

Dutch expats coming to the UK after 1 January 2021 will automatically be subject to the new points-based immigration system.

Social security

For British expats living in the Netherlands on 31 December 2020 and Dutch expats living in the UK on that same date, nothing changes in principle regarding social security because they are covered by the Withdrawal Agreement. They will continue to be subject to Regulation (EC) No 883/2004 on the coordination of social security systems, making them subject to social security legislation in a single EU Member State.

British expats moving to the Netherlands from 1 January 2021 and Dutch expats moving to the UK from that same date are not covered by the Withdrawal Agreement but by the EU-UK Trade and Cooperation Agreement. This agreement provides for social security rights to continue to be protected in many cases. The Dutch government, together with social security implementing bodies, is currently reviewing how these agreements will be further implemented. Information will be published on the websites of the Social Insurance Bank and the UWV.

Any questions?

If you have any employment law questions about Brexit, please contact one of our team members.
Written by:

Key Contact

Amsterdam
Advocaat | Managing Partner
+31 20 605 61 86
+31 6 5373 9632

Key Contact

Amsterdam
Advocaat | Counsel
+31 20 605 65 49
+31 6 5184 5347
Margot van Herwerden

Key Contact

Amsterdam
Advocaat | Senior Associate
+31 20 605 65 04
+31 6 2043 0245