November 26, 2018

UK immigration - Brexit Update

With a draft agreement in place before the UK's planned exit from the EU next March, it is a good time to take stock of the current UK immigration landscape.

EU nationals have taken heart from the new EU Settlement Scheme, which flows from the draft Withdrawal Agreement approved by the EU member states last weekend and subject to a crucial vote in Parliament in December.  In keeping with this, the UK has created a simple online registration system for EU nationals in the form of the EU Settlement Scheme.  All EU nationals compliantly in the UK now, or arriving in the UK before the end of the Implementation/Transition phase on 31 December 2020, will need to register by a deadline of 30 June 2021.  A phased roll out of the EU Settlement Scheme has already begun in the North West of England and full implementation is due from March 2019.

The basis of the EU Settlement Scheme will be EU nationals showing they meet the core requirements of: Identity, Eligibility and Suitability in order to apply for Pre-Settled Status or Settled Status.  Applications should in theory be quick and straightforward without the need for hoards of documentation.  The application will focus on residence in the UK and, where relevant, work records being checked online against HMRC data.  Only those with a serious criminal conviction should encounter a difficulty in terms of suitability.

Inevitably though, even with a low percentage of refusals and/or employees who are unwilling to register, employers will find themselves with right to work issues as some EU nationals become illegal overstayers in the UK post Brexit.

Some will view the draft Withdrawal Agreement and the EU Settlement Scheme as just that – "draft".  The chances of a No Deal scenario occurring will significantly increase if Parliament votes against the Withdrawal Agreement and so will the EU Settlement Scheme ever come into force?  The government, including ex-Brexit Secretary Dominic Raab, has been clear on numerous occasions that EU nationals already in the UK will not be "turfed out" and the UK will keep the moral high ground.  However, the UK has not committed to the EU Settlement Scheme in the event of No Deal; one of several reasons why eligible EU nationals may wish to protect their position by applying for and ideally obtaining Permanent Residence before 29 March 2019.

In September 2018, the UK's independent Migration Advisory Committee (MAC) published its report with recommendations for the UK's post-Brexit immigration system (including after any Implementation Period, i.e. from 1 January 2021).  The recommendations of the MAC's report are irrespective of negotiations with the EU and the nature of any deal reached.  Time will tell whether the MAC's recommended post-Brexit immigration rules for EU nationals change at the eleventh hour in order to reach an accord.

The MAC's key recommendation, soon adopted as policy by Cabinet, was that freedom of movement for EU nationals should end – EU nationals should no longer be given preferential treatment over non-EU nationals.  As such, EU nationals should be subject to the work permit scheme under Tier 2 of the Points Based System.  To cater for a skills shortage from fewer EU nationals in the UK, the suggestion is to extend Tier 2 from only 'highly skilled' roles to 'medium skilled' roles as well.  With a minimum salary requirement of £30,000 in most cases, no regional variations and an Immigration Skills Charge of £1,000 per year of the visa obtained, employers may be concerned by the recommendations.  With an absence of any real scope for applications for 'lower skilled' roles, aside from a suggested expansion of the Tier 5 Youth Mobility Scheme, employers in the retail, catering and agricultural sectors to name only a few may be doubly concerned.

The next few weeks may well prove crucial to the makeup of the UK's future immigration policy for years to come.  Whilst the EU Settlement Scheme may provide some breathing space for employers and a No Deal scenario (i.e. from 11pm 29 March 2019) may be unlikely to mean the forced removal of existing EU nationals in the UK, would a No Deal usher in Tier 2 applications for new EU nationals arriving as soon as 30 March next year?