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IMPACT – MEDIUM
An attack on the Westminster Bridge near the U.K. Parliament in London left at least five people dead, including the assailant, and dozens injured. The attack left parts of London on lockdown Wednesday. Authorities advised U.K. and foreign nationals to monitor their security.
Key points:
BAL Analysis: U.K. and foreign nationals in or around London should exercise caution and expect the possibility of security-related delays when traveling in and around London.
This alert has been provided by the BAL Global Practice group. For additional information, please contact BerryApplemanLeiden@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 – HIGH
The U.K. government has announced that March 29 is the date it will officially notify the EU of its intention to withdraw from the EU. The U.K. will formally invoke Article 50 of the Lisbon Treaty, setting off a two-year negotiation period before the final separation in 2019.
Key dates:
BAL Analysis: Theresa May is expected to deliver a short statement to parliament shortly after invoking Article 50, in which she is likely to reiterate her key objectives in the negotiations, which include controlling migration outside of the free movement directive for new arrivals and securing reciprocal rights of U.K. citizens currently in Europe against European citizens currently in the U.K. May is under some pressure to resolve the status of the 3.2 million Europeans in the U.K. within the first few months of negotiations, but it remains to be seen if this is possible.
BAL will be holding a webinar Thursday, March 23, on “Making Sense of Brexit and Tier 2 Skilled Worker Reforms for UK Employers,” where we will discuss the impact of Brexit and other immigration changes affecting companies that rely on EU and non-EU workers.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
What is the change? The annual statement of changes to the Immigration Rules has been published.
What does the change mean? The statement of changes confirms anticipated structural changes for Tier 2 visas and increased costs for employers via the Immigration Skills Charge and Immigration Health Surcharge beginning in April.
Key changes: The changes represent the second phase of planned reforms first announced March 24, 2016, arising from the Migration Advisory Committee report of that year. Summary of key changes for employers:
Significant changes outside the Tier 2 scheme include but are not limited to:
BAL Analysis: The majority of these changes have been on employers’ radar for some time, but it is helpful to now have confirmation that there are no major last-minute changes. The business community had hoped that the “high value business” provision would allow greater exemption from the RLMT, but the provision clearly does not benefit existing high value multinationals who have been registered for three years or more in the U.K., nor smaller start-ups that cannot match the investment level or prove job creation with sufficient certainty. The major impact will be felt by imposition of the Immigration Skills Charge, both to overall business costs and short-term administrative burdens.
BAL is holding a webinar March 23 on “Making Sense of Brexit and Tier 2 Skilled Worker Reforms for U.K. Employers.” Registration and details are available here. We will also be sharing a Backgrounder on the changes which looks at wider reforms in detail.
What is the change? The government’s Brexit bill passed its final vote Monday night in Parliament, authorizing the government to trigger Article 50 Brexit procedures later in March. Neither of two amendments – one to protect existing EU migrants’ rights to remain in the U.K. and the second to guarantee Parliament a vote on the eventual Brexit deal – have been successful.
What does the change mean? The bill could receive “royal assent,” a final formality in the legislative process, as early as Tuesday. While Prime Minister Theresa May could theoretically invoke Article 50 as soon as assent is granted, she is expected to wait until the last week in March to officially notify the EU that the U.K. is withdrawing from the bloc.
Background: Late Monday evening, the House of Commons voted down two amendments that the House of Lords had proposed with backing from both Liberal and Labour peers as well as other prominent Remain supporters. One amendment would have guaranteed the status of EU citizens already living in the U.K.; the other would have given Parliament a vote on any final deal – or no deal – that is negotiated between the U.K. and the EU before the final separation. The bill then returned to the House of Lords, which recognized its inability to influence proceedings further and passed it without further amendments.
BAL Analysis: Formal Brexit procedures can now begin by the end of the month as anticipated, but defeat of the amendments means that the long-term status of Europeans remains unclear. May’s unwillingness to guarantee the right to remain ahead of official negotiations, despite strong moral and political arguments to do so, offers little comfort to the 3.2 million Europeans currently living in the U.K., although it is hoped that the government will adhere to its stated goal of seeking resolution of their status early in the two-year negotiation process.
Scottish First Minister Nicola Sturgeon has announced she will give Scottish voters a second chance to vote for independence from the U.K., given the strength of anti-Brexit feeling in Scotland.
Sturgeon’s announcement came as legislation that will allow the U.K. to begin formal Brexit negotiations with the European Union was moving through Parliament.
“The U.K. government has not moved even an inch in pursuit of compromise and agreement,” Sturgeon said. “Our efforts at compromise have instead been met with a brick wall of intransigence.”
Sturgeon has indicated the second independence referendum will be held at some point between Fall 2018 and Spring 2019, once the U.K. is able to set out the terms of its departure from the EU. Its aim would be to allow Scottish voters a choice between “hard Brexit” and the end of free movement within Europe, or Scottish independence and a direct relationship for Scotland with the EU.
Key Points:
BAL Analysis: A second Scottish referendum would be timed before the U.K. officially leaves the EU, but after it becomes clear what type of Brexit agreement could be reached between the U.K. and EU. There seems a good chance a second referendum could have a different result than the first, given Scotland’s preference for remaining part of the EU. The immigration consequences would be significant, though many steps remain before a referendum can be approved and put before voters.
Scottish independence offers a possibility of greater protection for European migrants in Scotland, and the continuation of free movement. It also opens the door for a revised immigration policy for all foreign nationals, as Scotland’s specific immigration needs and demand for workers both in lesser populated areas and in key industries such as the North Sea oil and gas industry have often not been met by the U.K.’s more restrictive immigration policies.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact your BAL attorney.
The following is a roundup of recent developments concerning Brexit negotiations and the United Kingdom’s withdrawal from the European Union.
News Summary
The status of the estimated 3.2 million EEA nationals and their family members already living and working in the U.K. continues to be the hot-button issue that may delay passage of the Brexit Bill and the start of official Brexit negotiations this month.
Prime Minister Theresa May has staunchly maintained that any rights of Europeans in the U.K. must be negotiated against the rights of U.K. nationals in mainland Europe, and there have been strong indications that a “cutoff” date will be introduced in line with Article 50 to prevent new arrivals benefiting from automatic permanent residence after five years. However, the House of Lords last week voted to amend the Brexit Bill to include a guarantee of residence for Europeans who are legally in the U.K.
Further, Monday’s report by a cross-party Parliamentary Committee on Exiting the EU has highlighted the government’s responsibility to end uncertainty and unilaterally guarantee the rights of EEA nationals and their family members currently in the U.K. The report urges the government to announce its timetable and intentions on post-Brexit immigration policy “as soon as possible” to ensure new European arrivals are clear on their long-term status. Meanwhile, permanent residence applicants are facing six-month delays and considerable documentary hurdles, albeit the introduction of online systems is bringing hope for processing improvements in the long term.
Politics and Immigration
Guaranteeing rights of Europeans currently in the U.K.
The government’s Brexit Bill, while approved in the House of Commons, suffered its second defeat in the House of Lords on March 7―the final vote was 336 to 268.
Last week, the bill was defeated over the issue of whether EU nationals must be guaranteed their right to remain and obtain permanent residency after the U.K. leaves the EU. The Lords voted 358-256 for an amendment to formally guarantee the rights of the approximately 3.2 million Europeans living within its borders at the outset of Brexit negotiations, rather than forcing them to continue living in uncertainty. The House of Commons previously rejected a similar amendment and could overturn the new amendment.
While the Lords have no constitutional power to prevent the bill from ultimately passing, if it continues to ping pong between the two houses over the terms of any amendment, it will set back the date on which Theresa May is able to trigger Article 50 and the start of official negotiations. The government has postponed its original March 15 target to March 31, 2017. Monday’s report by the House of Commons cross-party select committee has put mounting pressure on MPs to accept the House of Lords amendment to unilaterally guarantee Europeans’ rights.
Home Office processing: Improvements or unfair treatment?
Brexit has created a huge upsurge in demand for non-mandatory residence permits and confirmation of permanent residence which the Home Office has struggled to process. European law requires that applications be processed within six months, a service standard which the Home Office has historically met. Since the Brexit referendum, an initiative now allows Europeans and their dependent family members to use both premium and online application processes. The online process is not available to non-EEA national dependents who are applying separately from the EEA national, or anyone who qualifies on the basis of time spent as a student or as a self-sufficient person. However, it does provide workers with five years of P60s, a streamlined process to obtain recognition of their status. From a practical perspective, the European passport passback service is a useful addition for EEA nationals who do not have a European ID card, and who need to retain their original passport for travel.
Following complaints that the Home Office has erected a “bureaucratic wall” for Europeans applying for confirmation of their right to reside in the U.K., the European Parliament intends to launch a task force to investigate potential “unfair treatment” of Europeans. The task force would likely look into the cumbersome application forms and evidentiary rules which were not made clear at the time migrants moved to the U.K. and now impose strict definitions of “legal” residence. The fact that the Home Office is currently rejecting 30 percent of permanent residence applications demonstrates that European applicants should not presume their eligibility. These applications continue to require focused legal attention and there is sound rationale for seeking to protect their rights prior to the invocation of Article 50.
Status of U.K. nationals in Europe
European leaders have consistently asserted that no negotiations regarding the status of the estimated 1.8 million British citizens currently living and working in Europe can take place prior to the triggering of Article 50. May has steadfastly reiterated her reluctance to issue guarantees for Europeans in the U.K. to allow her to maintain an effective negotiation position. However, given that immigration policy is frequently based on reciprocity, this position appears increasingly counterproductive. A House of Commons report released Monday states that U.K. citizens living in the EU are most concerned about the loss of their right to remain and right to work in the EU, as well as the continued recognition of their qualifications for purposes of work authorization post-Brexit.
Health insurance technicalities
There have been reports in the media that the Home Office has issued warnings to EEA nationals who do not have comprehensive sickness insurance that they may not be able to remain in the U.K. after Brexit. The Guardian reported that a student, in response to a query to the Home Office, “was told that if ‘a student attempting to exercise treaty rights [to live in the UK] does not hold either CSI or EHIC [a European Health Insurance Card for tourist health cover] they will be liable for removal from the UK.’” In an apparent departure from these alarming but isolated cases, the Guardian reported that the Home Office has insisted that EEA nationals will not be deported if they do not have private healthcare.
The Home Office has affirmed their position that anyone who does not have private healthcare (comprehensive sickness insurance), but would need to have this as a student or self-sufficient person to establish a right to reside in the U.K., will not be removed if their permanent residence application fails. However, the legal position is worrying since those without a right to reside in the U.K. could be removed under Directive 2004/38/EC. It is unlikely that the Home Office will embark on a program to remove EEA nationals who do not have the “right of residence,” but there would be implications in terms of not being able to qualify for British citizenship since evidencing and documenting permanent residence is a pre-requisite to citizenship.
Cutoff of residency rights for new European arrivals to the U.K.?
Once May is in a position to invoke Article 50, it is anticipated that she will declare either an immediate or short-term cutoff date for new European arrivals entering the U.K. May cannot legally prevent new arrivals from entering and living in the U.K. until Brexit occurs in 2019; these migrants will continue to be able to use passports for travel and prove a right to work. However, the impact of any cutoff would be to make clear that new arrivals should not expect to qualify for permanent residency based on five years of residence in the U.K. With the U.K. anticipated to formally leave the EU by 2019, those individuals would be subject to any post-Brexit immigration regime, for example allowing a more restricted qualification basis for permanent residence or demanding work permission under Tier 2 on the same terms as third-country nationals.
Post-Brexit immigration rules: All options still on the table
The Home Office has confirmed that it is leaving its options open in formulating how European migrants will be treated under a post-Brexit immigration system. The agency may adopt a system that would give Europeans preference over other foreigners under a dual system, or it could propose a single scheme that would subject all non-U.K. nationals to the same work-permit regime.
Monday’s parliamentary report recognized that a sudden reduction in Europeans in the U.K. would disrupt business across a number of sectors in both lower and higher skilled operations; it recommended that the government maintain preferential treatment for Europeans after Brexit. This year, several further inquiries will seek recommendations on how to shape the new system. In particular, parliamentary subcommittees are conducting inquiries into Brexit’s impact on various aspects of the economy, migration, the labor market and sector-specific industries. The Lords Select Committee on Economic Affairs is holding public hearings this month on how the reduction in net migration will affect wages, different sectors and migrants of high, medium and low skill levels. The EU Home Affairs subcommittee is investigating how Brexit will affect the rights of U.K. citizens to move and work within the EU post-Brexit. And an all-party Parliamentary group is studying Brexit’s impact on small- and medium-sized employers with a particular focus on certain sectors, including technology.
Preparing Your Company
Brexit negotiations will be underway as soon as the U.K. invokes Article 50, which is anticipated by March 31. Businesses should be preparing now for the impact of Brexit on their European and third-country national employees and assignees in the U.K.
The cutoff date for new European arrivals could come as early as this month and, while Europeans will still be able to use passports to live and work in the U.K. without visas, employers should be mindful that new European arrivals after any cutoff date are unlikely to be eligible for permanent residency based on their five years of residency. At the same time, although Europeans who are currently living and working in the U.K. are expected to continue to be able to rely on their five years of lawful residency, the Home Office’s interpretation of what counts as “lawful” and “continuous” residency has become extremely restrictive. Each individual should be carefully assessed against risk of losing eligibility and advised on options post-Brexit.
BAL can assist with a number of services including:
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 whether there is a basis on which they can claim to be a “qualified person” under EU law. Employees should make sure they possess:
Brexit Timeline
BAL urges companies and employees alike to take an informed and thoughtful approach to Brexit. While the government’s hardline approach is not encouraging, the status of EEA nationals in the U.K. has not changed and will not change for some time. Below is a timeline of key dates:
Should you have any questions or require more information on how BAL can help with Brexit planning, please contact us at uk@bal.com.
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.
What is the change? A report by a cross-party parliamentary Committee on Exiting the EU said that the government should unilaterally guarantee the right to permanent residence for the approximately 3.2 million EU nationals already in the U.K., as well as setting a cutoff date as soon as possible for new EU arrivals so it will be clear who will be eligible to accrue a right to permanent residence after five years. The committee also urged the government to publish its timetable for the next Immigration Bill as soon as possible.
What does the change mean? The report was unanimous and adds further political weight to the growing chorus of support for EU citizens to be guaranteed their rights to reside before official Brexit negotiations begin.
Background: The report was the result of an inquiry into the government’s negotiating objectives regarding EU citizens in the U.K. and U.K. citizens in the EU ahead of Article 50 being triggered (currently set for March 31. Among the report’s key findings:
BAL Analysis: The committee urges immediate action on the status of EU nationals in the U.K. and seeks transparency as to the government’s intentions on future migration policy, a recommendation that, if adopted, would be enormously helpful. Residency applications are currently being rejected for reasons such as failure to hold comprehensive sickness insurance during periods of study or “self sufficiency” between jobs – requirements that European applicants were not made aware of previously – and therefore any drive to secure their rights based on the fact of residence rather than hard line legal interpretations or documentary rules is welcome. Nevertheless, the government has withstood previous requests for guarantees and with just weeks before negotiations begin, this latest report offers no certainty that guarantees will be given.
What is the change? In the House of Lords, peers voted across party lines to pass an amendment to the Brexit bill guaranteeing the rights of EU nationals currently in the U.K.
What does the change mean? The amendment was not in the government’s version of the bill, and would require the government to ensure the rights of EU citizens and their family members currently in the U.K. and their rights to residency post-Brexit. The House of Commons previously rejected a similar amendment.
Background: The amendment says that within three months of triggering Article 50 exit procedures, the government must introduce proposals to ensure that EU and EEA citizens and their family members who are legally resident in the U.K. as of the date of the bill’s enactment “continue to be treated the same way with regards to their EU-derived rights, and, in the case of residency, their potential to acquire such rights in the future.”
BAL Analysis: While the House of Lords cannot ultimately stop the government’s Brexit bill or insist on the amendment, it can delay the triggering of Article 50 (expected mid- to late March) as the bill enters “ping pong” mode between the two parliamentary houses. The amendment recognizes the U.K.’s responsibility to protect the estimated 3 million Europeans currently in the U.K. and provides a legal framework in which to guarantee that rights are established as early as possible ahead of any Brexit cutoff date. To date, the government has given broad reassurances that they have no intention of treating EEA nationals already in the UK “with anything other than respect,” but has stopped short of offering any guarantee unless and until U.K. citizens currently in other EU countries are assured reciprocal rights. BAL is following developments and will provide updates as the Brexit bill proceeds through Parliament.
What is the change? Prime Minister Theresa May is reportedly preparing to formally announce limitations on the rights of new EU arrivals in tandem with her announcement triggering Article 50 exit procedures next month. As of that date – anticipated to be March 15 – new EU/EEA arrivals to the U.K. should not have an expectation of permanent residence after five years.
What does the change mean? While EU/EEA nationals arriving after any cutoff date may continue to exercise free movement and work in the U.K. without specific work permission in the short term, they are on notice that they may not qualify for permanent residency post-Brexit and will likely need additional work permission or registration after the U.K. formally leaves the EU in 2019.
Background: May is apparently setting an immediate cutoff date simultaneous to the triggering of Article 50 in order to avoid an influx of migrants from the EU. The reports come after Home Secretary Amber Rudd confirmed in a televised interview that the U.K. “will be ending freedom of movement as we know it,” thus, any new EEA migrant prior to Brexit must expect to transition to a work permit. The Home Office has confirmed that all options are on the table for a post-Brexit national immigration scheme, which will either apply a single system to all foreign nationals or a dual system that treats EEA nationals as preferential to non-European migrants.
It is expected that EEA nationals already living in the U.K. as of any cutoff should continue to be able to work and be granted permanent residency based on meeting the five-year residency as a “qualified person” requirement. However, Rudd also reiterated that while May wants to guarantee the status of EEA nationals already in the U.K. “as soon as possible,” she will not do so until U.K. nationals receive reciprocal guarantees of their status in EU countries.
BAL Analysis: The imposition of a cutoff date is legally challengeable (as it effectively thwarts EU law which remains in force until after Brexit) but May is likely relying on the EU being unwilling or unable to enforce this politically. Companies should be tracking their European workforce to plan for Brexit and its impact on EEA nationals’ continued rights to live and work in the U.K. While European nationals currently working in the U.K. should be able to maintain the right to stay in the U.K., individuals with breaks in their continuous stay in the U.K. or who spent periods of time as students, self-employed or self-sufficient and without comprehensive sickness insurance remain at risk of being ineligible for permanent residency.
BAL is hosting a webinar March 23 on “Making Sense of Brexit and Tier 2 Skilled Worker Reforms for U.K. Employers.” Registration and details are available here.
What is the change? The United Kingdom is expanding its 24-hour Super Priority visa service to applicants in key business locations in the United States.
What does the change mean? Visa applicants traveling on urgent and short notice may now apply at premium application centers in any of seven U.S. cities—Boston, Chicago, Houston, Miami, New York, San Francisco or Washington, D.C.—and obtain a visa determination within 24 hours.
Background: U.K. visas may be submitted under three different services, at different price points, depending on how quickly the visa is needed and how much time the applicant can afford to be without his or her passport. Standard processing in the U.S. tends to take 10 to 15 business days plus shipping time. Priority processing, available for an additional fee, takes five business days plus shipping time. The Super Priority service takes just 24 hours but costs an additional £750 on top of standard visa fees.
The Super Priority visa service is now available in seven cities in the U.S. as well as a number of other locations around the world, including locations in China, Colombia, India, Kazakhstan, Nigeria, the Philippines, Saudi Arabia, South Africa, Thailand, Turkey and the United Arab Emirates. U.K. officials said recently that in the coming year UK Visas and Immigration would handle more of its casework digitally from Sheffield in the U.K. This change could allow for more premium application centers to open around the world in key business locations.
BAL Analysis: The expansion of Super Priority visa services in the U.S. is welcome news for employers and assignees looking for business flexibility or in urgent need of a U.K. visa. The planned transformation of UKVI services in 2017 suggests that employers can anticipate greater access to premium application centers in business centers globally. Whether the Super Priority service is the best option will depend on several factors, in particular whether the migrant is already based in, or planning on traveling to, a Super Premium service center location, and whether the cost is justified by the business need for travel. BAL frequently recommends priority processing, but the expansion of the Super Priority service is a welcome development.