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IMPACT – HIGH
Today, the U.K. government published details of its proposal on how it will treat EU citizens in the U.K. in light of Brexit proceedings, including proposals on how EU citizens would apply to remain in the U.K. following formal withdrawal. The proposal, titled “Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU,” is the first written offer from the U.K. government addressing the contentious issue of the status of EU citizens.
BAL reads the policy set forth by Theresa May and the Home Office as a minimum baseline of rights for EU nationals after Brexit and expects the EU to push significantly for greater rights during negotiations. EU Brexit negotiator Michel Barnier responded to the proposal stating that the EU’s goal on citizens’ rights is to maintain “the same level of protection as in EU law” and to guarantee those rights, “more ambition, clarity and guarantees [are] needed than in today’s UK position.” Therefore, BAL anticipates additional negotiating and additional shifts before EU nationals have full clarity on their future status in the U.K.
Key points:
BAL anticipates that given the U.K.’s proposal, the following areas will be likely areas of change and a focus for EU negotiators:
BAL Analysis: The U.K. offer is merely a proposal at this point and is likely to change as the EU negotiates its position. The proposal indicates that EU nationals in the U.K. would need to re-apply for their residency status either under a new voluntary system pre-Brexit or as a legal requirement post-Brexit; as such, they may wish to discuss with a BAL professional whether to undertake the laborious application process at this time.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
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 copyright@bal.com.
IMPACT – MEDIUM
Days after Brexit negotiations opened, U.K. Prime Minister Theresa May has made an offer to EU leaders on the issue of EU citizens’ rights – an issue that is a priority for both sides and affects 3 million EU citizens in the U.K. and 1.5 million Britons living in the EU.
The offer would create a new “settled status” for EU citizens who have lived in the U.K. for five years to remain permanently and enjoy equal rights to U.K. citizens. A cutoff date would be set, after which EU nationals would no longer be automatically eligible for settled status.
May rejected the EU’s position that the cutoff date should be Brexit day (estimated March 29, 2019), and instead indicated that the cutoff date would be negotiated and should fall sometime between the date the U.K. triggered Article 50 (March 29, 2017) and Brexit day. EU citizens who arrive before the cutoff date will be given a grace period to reach the five-year residency prerequisite. And those arriving after the cutoff date but before Brexit day will be allowed approximately two years to obtain a work permit or leave the U.K.
The prime minister made the overture while speaking after a dinner at the EU leaders summit in Brussels, calling it a “fair and serious offer.” The deal would require the EU to reciprocate by giving the same rights to U.K. citizens living in the EU. May also said that she did not want to see families split up, indicating that family members could be included in the offer.
The EU’s negotiating position is that all EU citizens who have lived in the U.K. while it was an EU member, and current and future family members, should enjoy a continued right to settle after the U.K. leaves the bloc.
In her speech in Brussels, May also rejected the EU’s stance that the rights of EU nationals should continue to fall under the jurisdiction of the European Court of Justice, indicating that U.K. courts would hear cases of EU nationals under U.K. law. May’s hard Brexit plan would remove the U.K. from the jurisdiction of the European Court of Justice.
BAL Analysis: May said that the offer was intended to provide “as much certainty as possible” to EU citizens in the U.K., but the parties remain divided on several key issues regarding citizens’ rights and, without a known cutoff date, EU citizens in the U.K. remain uncertain about their rights to remain.
Brexit negotiations are set to begin Monday between U.K.’s Brexit Secretary David Davis and the EU’s Brexit negotiator Michel Barnier while a political cloud hangs over Prime Minister Theresa May in the U.K.
The meeting will set out the structure of talks to follow in months to come, and will focus on the rights of EU nationals in the U.K. and vice versa, the financial settlement and other issues related to the divorce. The EU’s position is that the separation agreement must be resolved before future trade relations can be discussed. According to the BBC, EU officials have said that the U.K. has agreed to this approach, but Davis is not budging on wanting divorce and trade talks to occur simultaneously.
An early resolution on citizens’ rights would provide certainty to the more than 3 million EU citizens currently living and working in the U.K. and more than 1 million Britons living in the EU.
At home, May’s political future is uncertain. Following a shocking election defeat, she is in negotiations to form a fragile government with Northern Ireland’s Democratic Unionist Party. Blamed for running a lackluster campaign that failed to connect with ordinary voters, May now faces criticism for not meeting with victims of an apartment building fire in West London that killed more than a dozen residents last week, and her budget cuts are being scrutinized as a possible contributor to unsafe conditions leading to the fire.
Meanwhile, Conservative MP Brandon Lewis has been appointed Minister of State for Immigration for the new U.K. government. Having originally opposed Brexit, he is now a supporter of May and voted against unilaterally guaranteeing the rights of EU citizens to remain in the U.K. He reiterated that May has vowed to reduce net migration to the tens of thousands but has refused to say whether he agrees with the pledge, according to British media.
BAL Analysis: While the U.K. government’s priorities will become clearer by the end of June when the Queen’s Speech lays out the new government’s priorities, the Conservatives’ minority government is expected have a weakened hand in negotiations. It is hoped that an early decision will be made on the rights of EU nationals already living in the U.K. or arriving ahead of Brexit, to give much needed certainty to individuals and employers alike.
Nearly one year after voting to leave the EU, U.K. voters have handed a stunning defeat to Prime Minister Theresa May by voting out the Tory majority, weakening her hold on the government and complicating Brexit negotiations between the U.K. and the EU, which are set to begin in 10 days.
The Conservative Party is expected to end with 318 seats, leaving a hung Parliament with no party commanding the 326 required for a governing majority in the House of Commons. Jeremy Corbyn, whose Labour Party picked up 32 seats for a total of 262, called for May to resign. However, May announced she will work with the Democratic Unionist Party, which now holds 10 seats in Parliament, to form a government.
May claims that a Conservative government supported by the DUP will provide certainty, but with Brexit talks due to commence during the week of June 19, delays to the negotiations are likely. The loss of a majority government could force a softer Brexit or make the prospects of no deal more plausible. “Hard Brexit went in the rubbish bin tonight,” former Chancellor George Osborne said in televised remarks as exit polls came in.
EU leaders expressed concern that Brexit talks would stall. “We need a government that can act. With a weak negotiating partner, there’s the danger that the negotiations will turn out badly for both sides,” said European Commission member Guenther Oettinger. The U.K. is under a two-year deadline to complete a deal and exit, having already started the clock when May triggered formal withdrawal procedures in March. European Council President Donald Tusk said on Twitter that there is “no time to lose” in starting Brexit negotiations to avoid a no-deal.
On Friday, May resisted mounting pressure to step down, insisting that only her party had the legitimacy to govern and to bring certainty and the ability to lead Britain forward at this crucial time. She announced she will form a government with the support of the small Democratic Unionist Party in Northern Ireland. The DUP, led by Arlene Foster, is pro-Brexit but opposes a hard Brexit and does not want to see a hard border between Ireland and the U.K. The fragile partnership could put pressure on the Tories to negotiate for a soft Brexit in which the U.K. would retain some free movement and membership in the single market.
May gambled that calling a snap election three years early would secure a mandate for pursuing the hard Brexit she promised that would take the U.K. out of the single market and end free movement between the EU and U.K. Initially, May was expected to win convincingly but her double-digit lead dwindled as the campaign closed.
The Labour Party won big gains, having run on an anti-austerity economic platform, and the election result could be seen as a victory for Corbyn and a signal that May will need to establish a new vision for Brexit. Labour supports Brexit but rejects a hard break, calling for the U.K. to retain the benefits of the single market and customs union and to immediately and unilaterally guarantee the existing rights of EU nationals living in the U.K.
BAL Analysis: May has said she will “get on” with Brexit but there is doubt that her hard Brexit strategy could be workable given its seeming rejection by the voters, as well as the DUP’s likely position favoring a soft Brexit and the fact that any Brexit deal will be subject to parliamentary scrutiny where the Tories do not hold a majority. May’s hand in negotiations has been weakened while the hand of those who advocate a soft break from the EU has been strengthened.
May now has just over a week to formally strike a deal with the DUP, as well as establish a new government and re-align her vision for Brexit. BAL will be reporting on Brexit developments and the impact on business as news unfolds.
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 copyright@bal.com
U.K. Visas and Immigration has changed its processes for handling enquiries from customers and immigration agents.
Key Points:
BAL Analysis: UKVI customers with visa enquiries should follow the instructions above or contact their BAL professional.
Voters will go to the polls June 8 in an election that could shape the United Kingdom’s immigration programs for years to come.
The U.K. is set to begin formal negotiations with the European Union on the U.K.’s departure from the EU after the country triggered Article 50 in March. Prime Minister Theresa May called the snap election in April, hoping to strengthen the Conservative Party’s majority and bolster her Brexit negotiating hand. May has sought to put Brexit at the heart of the campaign from the beginning, saying political “game-playing” threatened to undermine the U.K.’s break from the EU.
“Division in Westminster will risk our ability to make a success of Brexit,” May said in April, “and it will cause damaging uncertainty and instability to the country.”
May’s once-commanding lead in the polls has narrowed significantly, however. And voters will now have their say on what path the government should take on Brexit and other immigration issues. The parties differ substantially on their positions.
The Conservatives, Labour and the Liberal Democrats all say they want to avoid a hard border between the Republic of Ireland and Northern Ireland; however, depending on the election outcome, they may differ in their negotiating approach with the EU on this issue. The EU has also said it does not want a hard border with between Ireland and the U.K.
The U.K.’s smaller political parties are also using the election to advance their agendas. The Scottish National Party is campaigning to give Scottish voters the chance to leave the U.K. once the terms of the Brexit deal are known. The right-wing UK Independence Party is pushing for a “one in, one out” immigration policy, aiming to reduce net migration to zero in a five-year period.
BAL Analysis: The election could have significant consequences for how the U.K. will approach negotiations with the EU. May had hoped to solidify support behind her by calling for the snap election, but the move was risky. Even if May wins the election, if Labour leader Jeremy Corbyn puts up a better-than-expected showing, May’s negotiating position may not be strengthened and could even be weakened. BAL is closely following the election and particularly the potential Brexit and immigration consequences and will continue updating clients on important developments.
What is the change? Biometrics appointments for U.K. visa applicants in New York City, San Francisco and other biometrics hubs are currently booked up as much as three weeks in advance.
What does the change mean? While each case is different and some applicants may be able to book biometrics appointments more quickly than others, visa applicants should expect delays when applying for a U.K. visa in the U.S.
Background: The delays appear due to a rush on visitor and work visas as summer approaches. Delays may be particularly acute at main hubs, such as New York City and San Francisco, though applicants are advised to plan in advance and anticipate possible delays no matter where they are applying.
BAL Analysis: BAL is working with clients who may be affected to advise that employers may need to push back start dates or consider expedited options such as premium processing. Contact BAL with any case-specific questions.
The United Kingdom raised its threat level to “critical” late Tuesday, with Prime Minister Theresa May saying another attack could be imminent after 22 people were killed in a bombing Monday night in Manchester.
May said the independent Joint Terrorism Analysis Centre raised the threat level to its highest level as officials continued work to determine whether a “wider group of individuals” are linked to the Manchester attack.
“I do not want the public to feel unduly alarmed,” May said. “We have faced a serious terrorist threat in our country for many years, and the operational response … is a proportionate and sensible response to the threat that our security experts judge we face.”
Background: Officials raised the threat level after a man set off a bomb at an Ariana Grande concert late Monday in Manchester, leaving 22 dead. The attack drew widespread condemnation, and authorities urged people to exercise caution. The U.S. Embassy in London encouraged “U.S. citizens in the United Kingdom to directly contact family members in the United States.” The embassy further urged people to remain aware of their surroundings “especially in crowds or at large events, and monitor local news sources for updates.” French President Emmanuel Macron and German Chancellor Angela Merkel both released statements expressing shock. “I am following the reports from Manchester with great sadness and shock,” Merkel said. “It is incomprehensible that someone could use a joyful pop concert to kill or seriously injure so many people.”
BAL Analysis: The increased security measures raise the possibility of delays when traveling within the U.K. British and foreign nationals are urged to exercise caution and follow instructions from local authorities, particularly while the threat level remains at its current level. Foreign visitors are advised to register with their home country’s embassy in London, and business travelers may want to make sure their company’s human resources department is aware of their presence in the U.K.
This alert has been provided by the BAL Global Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
The following is a roundup of recent developments concerning Brexit negotiations and the United Kingdom’s withdrawal from the European Union.
News Summary
European Union leaders have adopted Brexit negotiating plans and indicate they will focus on the rights of EU citizens, the Irish border and U.K. payments to the EU when formal negotiations begin.
Voters in the U.K. are preparing for a June 8 election, with Prime Minister Theresa May looking like the odds-on favorite to win reelection and perhaps strengthen her Brexit negotiating hand. May released a Conservative manifesto Thursday, calling for a dramatic reduction in migration to the U.K., doubling the levy companies pay to employ non-EU nationals and promising to put off a second Scottish referendum. The Labour Party has said it would scrap the Conservatives’ “hard Brexit” approach, while the Liberal Democrats say they would give U.K. voters the opportunity to accept or reject a final Brexit deal.
Early data points on Brexit’s impact on the business community are not promising. One report says recruiters are having trouble finding qualified candidates across industries, while another suggests that London may lose as many as 9,000 banking jobs to continental Europe. Businesses along the Ireland-Northern Ireland border face uncertainty. And a letter from Japan to the U.K. and EU reveals how closely non-EU countries are watching developments.
Immigration
EU adopts Brexit guidelines
At a special summit on Brexit on April 29, EU leaders quickly adopted the negotiating framework proposed by European Council President Donald Tusk and chief negotiator Michel Barnier. Under the guidelines, before negotiating future relations with the U.K., the EU-27 and the U.K. must first conclude negotiations on three issues: the rights of EU citizens, the Irish border question, and settling the U.K.’s financial bill with the EU. Barnier made a trip to the Irish border earlier this month where he said he would work hard to prevent a hard border but that some controls may be inevitable in order to meet EU border management requirements.
EU nationals in the U.K.
The rights of EU nationals in the U.K. may prove to be a thornier issue to negotiate than anticipated, as both sides have hardened their demands. May has refused to extend a unilateral guarantee to the approximately 3 million EU nationals living in the U.K., insisting on reciprocal rights for 1 million Britons in the EU, while Barnier seeks an “iron clad guarantee” of EU citizens’ rights before the parties move on to negotiate a trade deal. Both sides have drawn up lists of the various rights of EU citizens, including rights related to labor issues, social security benefits and residency, each of which must be negotiated. Barnier has insisted that the EU Court of Justice continue to protect the rights of EU citizens and their family members after Brexit; May’s hard Brexit plan seeks to end the European Court of Justice’s jurisdiction over the U.K.
Logistical hurdles
The Institute for Government, meanwhile, issued a report highlighting the administrative and logistical challenges of developing and implementing a new immigration system. “The scale of the task makes successful implementation of a new immigration regime by April 2019 unfeasible,” the report said, “not just for government, who will need to design and deliver the regime, but also the employers, landlords and providers of public services who both rely on the system and support its functioning.” The report noted that May has discussed the possibility of an “implementation phase” during the period between when the U.K. formally leaves the EU and when it takes complete control over its immigration regime, but EU leaders have said the U.K. would be required to accept EU laws on migration during such a transitional period.
Politics
Election manifestos
While the U.K. and EU continue their pre-negotiation posturing, U.K. voters are preparing to head to the polls June 8. Prime Minister Theresa May, viewed widely as the frontrunner, released a Conservative Party manifesto Thursday that contained a number of immigration-related measures, including:
May called for the snap election in the hopes of securing a mandate to deliver on Brexit. Her renewed pledge to reduce net migration to the U.K. from the hundreds of thousands to the tens of thousands raised some eyebrows. The promise has been a mantra of the Conservative Party since David Cameron vowed to slash immigration before his unexpected election win in 2010. George Osborne’s London Evening Standard ran an editorial that called the pledge unrealistic and suggested it lacked support in May’s cabinet.
The Labour party released its manifesto Tuesday, pledging to scrap the Conservatives’ approach to Brexit. Labour said it would immediately guarantee existing rights for EU nationals in the U.K., a welcome pledge for those who are affected or who believe it is important to guarantee such rights. It rejected what it calls “bogus immigration targets” in favor of developing new migration systems with input from business, trade unions, the devolved governments and other stakeholders. Labour says it accepts the Brexit referendum result, but that it would reject May’s hard Brexit approach and would work on “retaining the benefits of the Single Market and the Customs Union.”
The Liberal Democrats go a step further in their manifesto, saying they want to put another referendum before U.K. voters, giving them the option to accept or reject the final agreement the U.K. reaches with the EU. This could create additional uncertainty, but it remains to be seen what the public thinks is the most sensible approach on Brexit. Ultimately, the party in power after the election will determine how immigration policy is shaped for years to come.
Macron on Brexit
The French presidential election results brought a sigh of relief in Brussels. With Emmanuel Macron’s win, not only has the EU averted another possible defection from the bloc, but also gained a pro-European partner in Paris. Macron advocates a strong EU and has said the EU-27 should be “tough” on the U.K. and “extremely rigorous” about the consequences of leaving the EU. However, he also indicated in February that he would be inclined to guarantee the rights of U.K. citizens already living in France.
Business
Formal Brexit negotiations have not even begun yet, but some data suggest that U.K. businesses are already experiencing negative repercussions. A Markit/REC Report on Jobs released May 9 found that while unemployment is at its lowest rate since 2005, recruiters are having a tough time finding suitable job candidates in such fields as engineering, IT and nursing. REC Chief Executive Kevin Green cited “Brexit uncertainty” as a problem, saying that people are both less likely to come to the U.K. from Europe and are less likely to leave their current job.
Reuters, meanwhile, reported that London’s largest banks are planning to move about 9,000 jobs to continental Europe in the next two years. The BBC reported that questions about the border with Ireland remain a concern for border towns, with the Ulster University Economic Policy Centre issuing a study finding that businesses along the Ireland-Northern Ireland border currently benefit from €3 billion (£2.5 billion) in cross-border trade. Such reports emphasize the need for the U.K. government to consider carefully its approach to Brexit negotiations, as this could influence where businesses decide to place staff in Europe, even before the U.K. formally leaves the EU.
With that in mind, non-EU countries are following Brexit negotiations closely. In a 15-page “Message to the United Kingdom and the European Union,” for example, the Japanese government made a number of requests of the EU and the U.K., ranging from providing adequate notice about any policy changes to maintaining an immigration system that allows companies to have access to high-skilled foreign workers. “Uncertainty is a major concern for an economy,” the memo said. “We hope that predictability is secured whereby all stakeholders, not just the negotiating parties, have a clear idea of the post-Brexit landscape.”
Preparing Your Company
While the future is uncertain, many companies have begun taking proactive steps to support their EU employees and to plan for eventual changes to free movement. BAL continues to provide Brexit-related services at varying levels depending on individual corporate needs. Brexit immigration planning may include:
Employees
Employees can also take steps to prepare for Brexit, including making sure they are aware of their legal status in the U.K. and checking whether they can claim to be a “qualified person” under EU law. Employees should ensure they possess:
BAL encourages and welcomes communicating with the BAL London team regarding Brexit developments, as we continue to work with the Government to prepare for reforms.
Should you have any questions or require more information on how BAL can help with Brexit planning, please contact us at uk@bal.com.
European Council President Donald Tusk said in a letter Friday that the European Union’s Brexit negotiations with the United Kingdom should initially focus on guarantees for EU nationals in the U.K., the U.K.’s financial obligations to the EU and preventing the establishment of a hard border between the Republic of Ireland and Northern Ireland.
The letter was sent to European Council members a day before EU officials will meet to adopt guidelines for the EU’s Brexit negotiations, and Tusk repeated that the EU will focus on negotiating the U.K.’s departure from the EU before it begins talks on the EU and U.K.’s future relationship. “Before discussing our future, we must first sort out our past,” he said.
BAL Analysis: While negotiations have not yet formally begun, Tusk’s letter offers an indication of the line of negotiation that the EU is likely to pursue. The EU and U.K. both appear interested in an agreement that would protect the status of EU and U.K. nationals in the U.K. and EU, though no guarantees have been made yet. The EU’s positioning speaks to the concerns businesses and EU nationals have about the future status of EU nationals in the U.K., as immigration continues to be at the heart of Brexit talks.
BAL will continue to follow Brexit-related immigration developments and keep clients informed on key developments.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.