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What is the Brexit news?
After a five-hour emergency Cabinet meeting Wednesday, Prime Minister Theresa May secured Cabinet approval of her Brexit plan and Thursday recommended the draft text to Parliament. Negotiators for the European Union have already agreed to the draft plan. Several U.K. Cabinet ministers have since resigned, suggesting ministerial support is not unqualified and the deal is by no means secure.
What’s in the draft Withdrawal Agreement?
The draft U.K.-EU Withdrawal Agreement was released shortly after the Cabinet approved it. The 585-page agreement covers all aspects of the U.K.’s withdrawal from the European Union, including a transition period, mobility and EU/U.K. citizens’ rights, trade and a customs union, EU Court jurisdiction, and the land border between the U.K. (Northern Ireland) and Ireland. The key immigration-related provisions are summarized in detail below.
Transition period
A 21-month transition period during which free movement would remain in place will run until the end of 2020. EU citizens and U.K. citizens would retain the same rights to free movement, to work, study and access public benefits and to residency eligibility as they currently enjoy under EU law until the end of the transition period. The U.K. may at any time before July 1, 2020 request extension of the transition period.
Irish citizens
The U.K. will ensure that the Common Travel Area continues to apply. The CTA gives Irish and U.K. citizens the right to travel, live and work in each other’s countries without further processing.
Citizens’ Rights
EU citizens in the U.K. (and U.K. citizens in the EU) and their family members legally residing in the host country before the end of the transition period are eligible for permanent residency after accumulating five years of continuous residency and may count the time after 2020, if needed, to accrue the five years. EU citizens residing in the U.K. before the end of the transition period will need to register for a residency document within six months of the end of the transition period, i.e., no later than June 30, 2021. Close family members joining an EU national after 2020 will have three months from their arrival (or until June 30, 2021 if they arrive before April 1, 2021) to apply for settled status. Procedures are to be “smooth, transparent and simple” and avoid any unnecessary administrative burdens.
EEA and Swiss nationals
The citizens’ rights provisions are expected to apply to nationals of Iceland, Liechtenstein, Norway (European Economic Area nationals) and Switzerland pending reciprocity agreements between the U.K. and the four countries.
Professional qualifications
Professional qualifications will continue to be recognized in accordance with the EU Directive until the end of the transition period for all qualifications submitted before 2021. The U.K. will continue to retain access to internal market information systems for nine months following the end of the transition period.
EU Court jurisdiction
The U.K. will apply EU case law until the end of the transition, and U.K. administrative and judicial authorities will give due regard to EU case law decided after the transition period.
Northern Ireland
Until a superseding agreement is reached, a single customs union between the U.K. and the EU will be established to ensure the continued movement of goods and avoid a hard land border between Northern Ireland and Ireland and to protect the Good Friday Agreement. The U.K. and the EU will work to reach a superseding agreement before the transition period ends on Dec. 31, 2020.
Analysis & Comments
The mobility citizens’ rights provisions have not changed significantly since an earlier draft version, and the U.K. has already completed two pilot phases of the scheme for EU citizens to apply for settled status, which provides a fairly clear roadmap for U.K. and EU nationals regarding their mobility rights in the future. Other terms of the Withdrawal Agreement remain contentious with both hard-line Brexiters and opponents of Brexit, but the Cabinet’s endorsement of the Withdrawal Agreement marks a significant step in Brexit proceedings and will hasten negotiations with only five months before the U.K. leaves the EU. The European Council now plans to convene EU leaders at a special Brexit summit Nov. 25 to formally accept the Withdrawal Agreement.
Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
IMPACT – MEDIUM
What is the change? The Home Office has published its statement of immigration changes to take effect next month.
What does the change mean? The most significant change will be the implementation of the second testing phase of the EU Settlement Scheme for EU citizens and their family members living in the U.K. and needing to register post-Brexit.
Other changes:
Background: The EU Settlement Scheme was announced on June 21 to offer status in U.K. law for the estimated 3 million European citizens currently living in the U.K. under the European free movement law and on the basis of their European passports alone. The Scheme promises straightforward online registration with a light touch regarding documentation. Those with five years of residence in the U.K. would be granted “settled status” (i.e., permanent residence) and those without would be given limited leave (“pre-settled status”) to allow them to get to the five-year mark. Applications would be made any time until June 2021.
Appendix EU to the Immigration Rules came into force on Aug. 28 to allow the live testing of system functionality on a limited group of public-sector employees. Feedback has been positive on speed and ease of use. The next phase of testing is now due to start in November, with a goal of looking at the system end to end and how it affects more vulnerable groups, such as the elderly. Further changes are expected in December (for implementation in January 2019), and in early March 2019, so that the scheme will be operating fully by March 30, 2019—the day after Brexit.
Analysis & Comments: The changes announced this week are relevant to employers and European employees living in the U.K. to the extent that they provide evidence of the successful rollout of the EU Settlement Scheme despite the fact that the U.K. government is yet to secure an overall deal for Brexit (the Withdrawal Agreement remains provisional). The technology has proven successful in trial and applicants should be reassured that the user experience will be straightforward. Although the scheme is not yet operating, employers should work with their immigration professional now to fully consider how they intend to support their employees through this process and ensure that their right to work in the U.K. is documented.
IMPACT – HIGH
What is the change? Prime Minister Theresa May has confirmed that people from Europe and the rest of the world will face the same immigration rules if they want to come to live or work in the U.K. after Brexit, heralding “an end to free movement for once and for all.”
What does the change mean? Employers can now expect the U.K. to have a single, unified immigration system for migrants from Europe and the rest of the world in which low-skilled migration is substantially cut and high-skilled migration prioritized, beginning in 2021. There will be no “preferential treatment” of EEA nationals under existing or renegotiated EU free-movement principles.
Below are the key provisions in the immigration plan.
Background: Following the Migration Advisory Committee’s influential report on regulating European migrants in the U.K., the Cabinet had agreed to the principle that EEA nationals and non-EEA nationals should follow a single set of immigration rules once European “free movement” ends post-Brexit. Tuesday’s announcements detail government thinking on the U.K.’s post-Brexit immigration plan.
Analysis & Comments: Tuesday’s announcements are relevant to employers and individuals interested in the long-term plans for migration in the U.K. The government has already confirmed that the rights of EU citizens already living and working in the U.K. will be protected after Brexit and this announcement does not alter that position. The EU Settlement Scheme is already undergoing a pilot pending rollout prior to March 29, 2019, allowing these EU citizens and their family members to register with settled or pre-settled status and continue to live and work in the U.K. Employers must still await the conclusion of EU negotiations, expected in November, when a white paper should be published with comprehensive detail of the U.K.’s revised immigration system.
What is the change? The Migration Advisory Committee has published its final report detailing its study of EU/EEA workers in the UK. The report considers the total impact of EEA labour on life in the UK, including economic and social impacts on domestic wages, unemployment, prices, productivity, training, the provision of public services, public finances, community cohesion and well-being to provide a researched basis for migration policy.
The report makes key recommendations to the UK Government on regulating EEA workers after the UK leaves the European Union and the post-Brexit implementation period ends on 31 December 2020. Its recommendations are not binding, but the report suggests that the UK will move towards a single, unified immigration system for EEA and non-EEA nationals in which low-skilled migration is substantially cut, and the existing Points Based System Tier 2 routes for skilled workers are reformed for wider use.
Key recommendations:
The MAC report recognizes that “Free movement has the virtue of a low bureaucratic burden but at the price of losing control over both the level and type of immigration into the UK”. The MAC therefore recommends government policy should be to:
Specific Tier 2 (General) recommendations include:
Background: The MAC is an independent committee of experts that produces reports and recommendations to the UK Government to provide an objective evidence basis for migration policy. In July 2017, the Home Office commissioned the MAC to study current and future EEA migration patterns and the impacts of EEA workers on the domestic labour market, as well as to make recommendations on how to align the UK’s post-Brexit immigration system with modern economic goals. The committee conducted a Call for Evidence and published interim results of responses from business and other stakeholders in March. Those results indicated that businesses remain concerned about a future immigration system that limits their ability to access EEA labour.
Analysis & Comments: The MAC research produced detailed evidence to support its findings on the impact of EEA migration on the UK, which are summarized below.
The report is lukewarm in its support of the move to a managed migration system for EEA nationals, recognizing “A managed migration system could benefit the resident population though there would be winners and losers and the size of the benefits are likely to be modest”. However, its proposed shift towards higher-skilled migration means that while the end of free movement will cut low-skilled EEA access to the UK from 2021, changes to the existing Tier 2 visa system (by removing the cap, widening the range of jobs permitted, and reducing bureaucracy as detailed above) should either maintain or widen access to the UK for medium-skilled workers. Many employers would welcome an improved and enlarged Tier 2 system, although arguments that employers made during the Call for Evidence for sector-based schemes to ease loss of lower-skilled workers in retail, hospitality, social care etc. or regional variations have not been accepted by the MAC.
What is the change? In a series of technical notes published last week, the UK government has set out the implications if the UK leaves the EU on Brexit Day (March 29, 2019) without reaching a withdrawal agreement, including to the rules governing travel and mobility.
What does the change mean? Employers and individuals should understand the default requirements and restrictions on mobility for UK and EU citizens in the event of a “no-deal” Brexit.
Key points:
Analysis & Comments: While the UK government continues to work toward a comprehensive withdrawal agreement with EU negotiators, it recognizes that with Brexit just six months away and a complex legal process to ratify any agreement, a no-deal outcome remains a possibility. UK employers and business travellers should factor in additional time and processing if immigration controls are placed on travel within Europe post-Brexit. British citizens should consider renewing their passports now if they hold older, longer-validity passports (issued more than nine years and six months before the intended date of travel) or if they will expire within six months of intended travel to a Schengen country. British citizens planning travel to the Schengen region post-Brexit should familiarize themselves with the strict counting rules that would apply to them if there is no deal in place.
The Migration Advisory Committee has proposed changing visa processes to make it easier to hire international students. The proposal was one of several recommendations included in a 117-page report issued this week.
Former Home Secretary Amber Rudd commissioned the MAC in 2017 to assess the impact of international students in the U.K. The commission subsequently issued a call for evidence and based its recommendations in part on the responses stakeholders provided. The MAC recommended that the government:
The MAC declined to endorse the idea of introducing a separate post-study visa program, saying it would drive up demand for short degrees in order to retain temporary working rights—a point that the committee’s chair, Professor Alan Manning, acknowledged would be disappointing to the education sector.
Analysis & Comments: While the MAC introduced changes that would ease the processes for obtaining a Tier 2 visa upon completing coursework, it stopped short of proposing a separate post-study visa program. It also recommended that international students continue to be counted in the government’s net migration statistics, a disappointment to the education sector at a time when officials are under pressure to reduce overall net migration. The government will review the MAC’s recommendations and will set out its position in response to the inquiry’s findings.
What is the change? UK Visas and Immigration is no longer accepting visa applications at the British Consulate in New York, which will cease operations Oct. 31.
What does the change mean? New visa applications in the U.S. will be mailed to VFS, the visa processing service that contracts with the U.K. government. Applicants will continue to attend biometrics appointments at VFS centers.
Background: In June, UKVI announced that visa processing would end in New York, the former U.S. processing hub, in October. UKVI also unveiled numerous pilot programs as it moves toward digitalization and onshoring of visa processing. Among the other changes, electronic applications will be more widespread and processing will be centralized in Sheffield, England; compliance audits of employer sponsors will make greater use of technology and electronic communications between employers and the agency; and premium visa services will be unbundled to give applicants greater choice in selecting which enhanced services they are willing to pay for.
Analysis & Comments: Though UKVI has indicated that visa application processing times will remain the same, applicants in the U.S. applying for U.K. visas should be aware of the changes and plan for the possibility of delays. The British Consulate General in New York previously processed approximately 95 percent of all applications within posted processing times, but the transition to the Decision Making Center in Sheffield may have an impact on the turnaround times for new applications during the initial ramp-up period.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
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What is the change? The U.K. will pilot a seasonal work permit program for farm workers next year.
What does the change mean? The pilot will provide up to 2,500 work permits per year to non-EU workers. The permits, which will be valid for up to six months, will be issued to help alleviate seasonal labor shortages. Officials will review the program at the end of two years to determine how best to settle on long-term solutions for labor needs in the farming industry.
Background: Home Secretary Sajid Javid and Environment Secretary Michael Gove announced the creation of the pilot program this week. Few details about how the program will be implemented are available at this point, but Gove said the pilot will “ease the workforce pressures faced by farmers during busy times of the year” and that officials “will review the pilot’s results as we look at how best to support the longer-term needs of industry outside the EU.”
BAL Analysis: The creation of the pilot program has received a muted response from U.K. farmers since the current shortfall of labor is said to be around 35,000 workers. That said, it is a sign that the U.K. is considering the needs of individual industries as it prepares to leave the European Union. BAL will continue to monitor the implementation of this program and will provide more information as it becomes available.
This alert has been provided by the BAL Global Practice and our network provider located in the United Kingdom.
What is the change? The allocated quota for Tier 2 Restricted Certificates of Sponsorship has been exhausted for July. Requests from applicants with fewer than 41 points and with a salary below £41,000 per year were rejected. Employers will need to resubmit these requests in August.
What does the change mean? While the quota was exhausted for the eighth consecutive month, the points and salary cutoff was significantly lower than it was in May and June. This is likely a sign that demand for Tier 2 Restricted Certificates of Sponsorship is easing up, especially after the U.K.’s recent announcement that National Health Service doctors and nurses were removed from the quota.
Background: The annual quota for Tier 2 (General) visas is 20,700, allocated into monthly quotas with more visas allocated for the high-demand months of April through September. U.K. Visas and Immigration removed doctors and nurses from the quota in June, a move that appears to have already had a positive impact on the quota. The quota has been reached every month since December 2017; however, the points and salary cap dropped significantly compared with recent months. The points cutoff, for example, was 46 in April, 51 in May and 60 in June.
BAL Analysis: Pressure on Tier 2 quotas continues to pose challenges for employers recruiting non-EU workers. However, the removal of NHS doctors and nurses from the Tier 2 caps was met with approval from businesses and the backlog that built up over a period of months may be easing. BAL will follow matters in the U.K. to see if the drop this month becomes a long-term trend.
The United Kingdom has published a 98-page white paper that outlines the country’s vision for the U.K.’s post-Brexit relations with the European Union.
The white paper envisions a future where the U.K. and EU would negotiate visa-free travel arrangements, establish intra-corporate transfer agreements and promote student mobility, and where the U.K. would maintain its open border with Ireland. Prime Minister Theresa May said in an introduction to the white paper that the government was working to fulfill the mandate of voters while still maintaining a strong relationship with EU member states.
“Our proposal is comprehensive,” she wrote. “It is ambitious. And it strikes the balance we need – between rights and obligations. It would ensure that we leave the EU, without leaving Europe.”
The white paper is split into sections on economic relations, security partnership, EU-U.K. cooperation and institutional arrangements. Among other key provisions on immigration, the document said:
BAL Analysis: The white paper is the U.K.’s most detailed indication to date of how the U.K. would like to shape its post-Brexit relations with the EU. Still, it is not clear how the politics will play out in the U.K., where May has come under sharp criticism from elements within her own party who favor a cleaner break with the EU, i.e., a “hard Brexit.” Nor is it clear how the EU will respond the U.K.’s proposals. Some of the proposals are still lacking in specifics, with the white paper saying “details of the UK’s future immigration system will be set out in due course.” BAL will continue following Brexit-related developments and will provide updates to clients as negotiations continue.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.