BAL Brexit Bulletin November 2, 2017

2 Nov, 2017


The following is a roundup of recent developments concerning Brexit negotiations and the United Kingdom’s withdrawal from the European Union.

News Summary

At the EU leaders’ summit this month, British Prime Minister Theresa May got a political boost from German Chancellor Angela Merkel, who acknowledged that “both sides need to move” on Brexit talks and downplayed concerns about the pace of negotiations by saying that a deal will be reached by the deadline of March 2019. It is hoped that the softening tone will break the impasse and help bring an early resolution to the issue of EU citizens’ rights and immigration before trade negotiations begin.

At home, where May faces mounting pressure to deliver, the Migration Advisory Committee has closed its call for public comments on EU migration and a post-Brexit immigration system. In response to the call for evidence, BAL has submitted a consolidated response on behalf of clients, highlighting U.K. companies’ reliance on EU workers, the need for continued access to EU talent and why a one-size-fits-all immigration system would hurt U.K. businesses.

While the EU readies to negotiate its future trade relations with the U.K. post-Brexit, on the other side of the Atlantic, Canada and the EU have concluded a major trade deal that eases mobility into the EU for Canadian professionals and could signal how the U.K. approaches immigration and trade relations in the future.



Will Merkel’s backing of May help settle immigration issue?

Merkel’s backing of May at the EU summit represents a new pragmatism in negotiations that could push key issues over the finish line before phase two of negotiations begins. On immigration, Merkel’s cooperation could be a positive signal that the EU and U.K. may be able to smooth over their remaining differences by early next year, rather than prolong debate over immigration until negotiators begin to tackle trade talks. An agreement on immigration now hinges on a few key issues, such as the length of the transition period after Brexit (two to four years), whether EU nationals in the U.K. can access the European Court of Justice, whether EU nationals who already hold permanent residency will need to apply for settled status, and how family members of EU nationals will be treated post-Brexit.



‘First big Brexit win’?

A deal is “imminent” to preserve the Common Travel Area (CTA) arrangement between Ireland and the U.K., according to Ireland’s Minister of Foreign Affairs Simon Coveney, who hailed it as the “first big win of Brexit.” The agreement is not a surprise, as the EU and U.K. both signaled at the outset their desire to keep the status quo. Continuation of the CTA would retain free movement for Irish and U.K. citizens, but does not resolve the difficult issues involving formation of a hard border between Ireland and Northern Ireland and resulting impacts on trade and customs. For in-depth analysis of the key Brexit issues involving Ireland, read BAL’s White Paper “Brexit: What’s at Stake for Ireland?”

EU-Canada trade agreement: future of free movement?

The EU has provisionally implemented a major trade deal with Canada that liberalizes trade and mobility for several categories of high-skilled professionals, including intracompany transfers, business visitors, service providers under contract, and investors. Under the Canada-EU Comprehensive Economic and Trade Agreement (CETA), which Theresa May supports, the U.K. would make concessions on immigration in exchange for significant trade deregulation. The deal could be a blueprint for how trade and immigration are linked within bilateral agreements post-Brexit.

BAL responds to MAC call for evidence
After meeting with members of the Migration Advisory Committee in London in October, BAL has formally responded to the committee’s call for evidence on EU migration and UK’s post-Brexit immigration system. In its letter to the MAC, BAL has included feedback from U.K. companies based on BAL surveying data that employers, particularly in the IT sector, have seen worrying concerns from EU national employees and job recruits about the overall impact of Brexit, the reduction in interest in response to U.K. job vacancies, and specific concerns about the status of their family members and whether London will continue to be an attractive place to work. Companies have also reported the skills gaps in the U.K. workforce that EU nationals currently fill and that they advocate revisions to the shortage occupations lists to include several roles in the IT industry, including software engineers, senior engineers, data scientists, and others.

EU nationals in the UK

While the MAC prepares its report, the U.K. government may have already predetermined its approach to the status of EU nationals. According to its proposed plan, eligible EU nationals will need to register with U.K. immigration authorities and apply for “settled status.” After a transition period, those EU nationals not eligible for either settled status or limited leave to remain would have to qualify for residence permits based on their skills, with high-skilled EU workers being eligible for three- to five-year permits and low-skilled EU workers being limited to a maximum of two years. One issue that remains in dispute is how long the transition period will last, during which EU nationals would be allowed to continue to live and work in the U.K. The transition period is intended to avoid a cliff edge and provide time for businesses and EU nationals to plan for new immigration rules. The U.K. government’s proposal indicated the transition period would last two years. The biggest sticking point with the EU is likely to concern access to the ECJ and also the continuing rights of EU nationals during transition and beyond – for example, the ability of certain family members (e.g., children over 18 and parents or grandparents of EU nationals) to join their U.K.-based EU national family member.


Preparing Your Company

The results of BAL’s two surveys and our engagement with clients about Brexit indicate that companies and EEA employees remain anxious about their future mobility, their families’ status and the potential for changing hiring practices by U.K. companies as a result of Brexit.

As the post-Brexit immigration requirements for EEA nationals become clearer, companies should work with their BAL professionals to plan best strategies for their EEA populations. BAL continues to recommend that companies keep close track of their European workforce needs, including their current numbers of EEA national employees, the roles they fill, time in the U.K., tenure with the company, and skills and salary levels. BAL can assist in assessing and tracking the necessary data for a smooth transition after Brexit.

Should you have any questions or require more information on how BAL can help with Brexit planning, please contact us at

Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact