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IMPACT – MEDIUM
What is the change? Parliament has voted against an amendment to the Brexit bill that would have guaranteed permanent residency to EU nationals currently living in the U.K. post-Brexit.
What does the change mean? The Brexit bill is currently being debated in Parliament and is expected to pass, giving Prime Minister Theresa May’s government the green light to trigger Article 50. The vote on the amendment means that the status of EU nationals in the U.K. remains an issue to be negotiated between the U.K. and the EU “as a priority” after Article 50 is invoked in March.
Background: The amendment to the Brexit bill would have ensured permanent residency rights for approximately 3 million EU nationals currently living in the U.K. Parliament rejected the proposed amendment by a vote of 332-290.
Home Secretary Amber Rudd issued a letter to reassure colleagues that the status of EU nationals would not be changed by the Great Repeal Bill, which seeks to transpose all EU law into U.K. law. The letter said that any changes to immigration rules for EEA nationals would be dealt with through a separate Immigration Bill to be debated in Parliament and promised that “nothing will change for any EU citizen without Parliament’s approval.”
May has consistently stated that she will not unilaterally guarantee the rights of EU nationals in the U.K. until U.K. nationals living within the EU receive reciprocal assurances.
BAL Analysis: The status of EU nationals in the U.K. post-Brexit remains uncertain with the rejection of the amendment. Rudd’s letter offers no legal guarantee to the 3 million EEA nationals in the U.K. and suggests only that Parliament will be able to vote on immigration law changes. Meanwhile, the Brexit bill is likely to pass, giving the government approval to trigger Article 50 of the Lisbon Treaty and begin formal exit procedures in March.
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 – HIGH
Prime Minister Theresa May has published a white paper in which she sets out her government’s strategy for Brexit negotiations due to start March 31, including how the U.K. will deal with European nationals currently living and working in the country.
Key Points:
The U.K. will seek to negotiate a future relationship with Europe, outside the EU and the single market. The white paper says the U.K. will be guided by 12 broad principles, including:
Background: May outlined plans for a “hard Brexit” on Jan. 17, shortly before the Supreme Court judgment that the government must obtain Parliamentary approval before invoking Article 50. While MPs voted overwhelmingly in favor of getting Brexit negotiations started, the white paper was published reluctantly following MPs’ continuing demands to be allowed to scrutinize any Brexit deal.
BAL Analysis: The white paper adds little to the statements May made on Jan. 17. EU nationals and their U.K. employers must continue to wait for real details to emerge once the Article 50 talks start in March. While the message that EU nationals in U.K. with five years continuous and lawful residence are automatically considered permanent residents may reassure some, questions still exist around how government officials are interpreting “lawful” in practice. The devolved governments in Northern Ireland, Scotland and Wales will likely continue to lobby for greater access to the single market. BAL will continue to follow Brexit-related immigration developments and will provide regular updates to clients going forward, and understands that at this point all options for future immigration systems for EEA nationals are still on the table.
UNITED KINGDOM (Jan. 24, 2017) – Brexit procedures cannot begin without Parliament vote, Supreme Court rules
The Supreme Court has ruled that Prime Minister Theresa May must obtain the approval of Parliament before invoking Article 50 of the Lisbon Treaty and beginning the process of leaving the European Union.
The ruling, announced Tuesday morning, was expected after a High Court reached the same conclusion in November. It is not expected to delay May’s timeline of invoking Article 50 by the end of March.
Background: The case was brought by U.K. citizens and other interested parties, including some EU nationals living in the U.K., who argued that it was unconstitutional for the government to begin withdrawal from the EU without Parliamentary assent. A High Court agreed with this position in November, rejecting the government’s argument that it could use the royal prerogative to invoke Article 50 without the go-ahead from Parliament.
The Supreme Court upheld the ruling by an 8-3 margin.
May outlined plans for a “hard Brexit,” including the U.K.’s departure from the single market, last week. May also said that she would like to guarantee the rights of EU nationals in the U.K. at an early stage in the negotiations, but will only do so if there is a reciprocal deal for U.K. nationals in the EU. Tuesday’s ruling could give some leverage to a cross-party group of MPs to protect the rights of EEA nationals in the U.K. during negotiations, but there is no guarantee at this point.
BAL Analysis: While the decision is a setback for the government, it does not appear that it will significantly change the timing of when the U.K. will invoke Article 50. The ruling does provide grounds for greater parliamentary involvement in Brexit negotiations generally, however. BAL will continue to follow Brexit-related immigration developments and will provide regular updates to clients going forward.
What is the change? The United Kingdom has said that it will allow Indian nationals applying for standard visitor visas in India to postdate their visas by up to three months as part of a campaign to encourage people to apply for visas during the low-volume months of January and February.
What does the change mean? Effective immediately, Indian nationals applying for visit visas in India will be able to obtain postdated visas by providing their intended dates of travel during the application process. Visas will be dated one day before their planned date of departure. U.K. officials also stress that applicants are likely to experience quicker turnaround times now than they would during higher volume parts of the year.
Background: The U.K. announced its “Beat the Peak” campaign earlier this month at the Destination Britain India event in Pune. The British high commissioner to India, Dominic Asquith, said in a statement that by making it easier for visitors to apply for visas early, the U.K. hoped that “even more Indians will choose to come to visit the UK to see our world class heritage sites, enjoy our beautiful countryside and experience the vibrancy of our cities.” Additional information is available on the UK’s VFS Global India website.
BAL Analysis: The option of postdating visas broadens the appeal of applying for visas in January and February and could save applicants significant time in the application process.
This alert has been provided by the BAL Global Practice group in Singapore. For additional information, please contact singapore@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
The Supreme Court has ruled that Prime Minister Theresa May must obtain the approval of Parliament before invoking Article 50 of the Lisbon Treaty to begin Brexit negotiations. The ruling was expected after a High Court reached the same determination in November.
Despite this news, the U.K. appears headed for a “hard Brexit” that would overhaul the country’s immigration programs. The Supreme Court’s ruling is unlikely to delay May’s timeline of invoking Article 50 by the end of March, and may even bring it forward. Last week, May detailed plans for a hard Brexit, saying the U.K. would leave Europe’s single market in order to regain control over migration from Europe. May stressed that while the U.K. would like to guarantee the rights of EEA nationals in the U.K., it will only do so if there is a reciprocal deal for U.K. nationals in the EU.
Legal
The Supreme Court case was brought by U.K. citizens and other interested parties, including some EU nationals living in the U.K., who argued that it would be unconstitutional for the government to begin withdrawal from the EU without Parliamentary assent. The Supreme Court agreed with this position, rejecting the government’s argument that it could use the royal prerogative to invoke Article 50 without the go-ahead from Parliament.
While the ruling gives Parliament the power to delay triggering Article 50, this action seems unlikely given that conservatives have a working majority in the House of Commons. Brexit minister David Davis said Tuesday that legislation to invoke Article 50 would be introduced “within days.”
“The purpose of this bill is simply to give the government the power to invoke Article 50 and begin the process of leaving the European Union,” he said.
In the wake of the decision, the Labour Party’s Brexit spokesman Sir Keir Starmer continued to push for the government to produce a white paper or other written document outlining the U.K.’s plan for Brexit negotiations with the EU. “A speech is not a white paper or plan,” he said. “And we need something to hold the government to account throughout the process. You can’t have a speech as the only basis of accountability for two years or more.”
The Supreme Court ruling could provide some leverage to a cross-party group of MPs to protect the rights of EEA nationals in the U.K. during negotiations; however, there is no guarantee at this point, and the rights of EEA nationals could emerge as a “bargaining chip” during the U.K.’s negotiations with the EU.
Politics
May’s speech on Jan. 17 confirmed plans for a hard Brexit. “We do not seek to hold on to bits of membership as we leave,” she said. “The United Kingdom is leaving the European Union and my job is to get the right deal for Britain as we do.”
May said the U.K. will leave Europe’s single market and negotiate an entirely new free-trade deal with the EU. This would involve seeking access to the European market without being part of it, thus avoiding associated costs and responsibilities.
May also said the U.K. would make it a priority to protect the Common Travel Area with Ireland, and that the devolved administrations in Scotland, Wales and Northern Ireland would be involved in negotiations.
However, the Supreme Court ruled that the devolved governments do not need to be consulted before Article 50 is invoked, prompting calls from First Minster for Scotland Nicola Sturgeon for a second Scottish independence referendum to allow Scotland a chance to negotiate its place in Europe.
Immigration
Future Migration
Little detail has emerged to answer the key corporate immigration question: What will happen to the 3 million EU/EEA nationals currently residing and working in the U.K., or to the 1.2 million U.K. nationals currently working and residing in the EU? May’s remarks offered little assurance.
“We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can,” May said. “I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now.”
In practical terms, this means that EEA nationals’ status in the U.K. is largely dependent on the postures of other European governments toward the U.K. As noted, EEA nationals in the U.K. have emerged as a potential “bargaining chip” in upcoming negotiations. Their status, for now, is not guaranteed, and the stricter approach to recent permanent residence applications suggests that up to 1 million EEA nationals in the U.K. could find themselves unprotected when Brexit occurs.
And while May did say she wants the U.K. to be a “friend and neighbour” to the EU, she also said that with respect to Brexit negotiations, “No deal for Britain is better than a bad deal for Britain.” This signals that a hard line will be taken during negotiations.
When planning future migration to the U.K., companies should assume that the principle of free movement and the European legal mechanisms to support it will cease to exist after Brexit. BAL anticipates that future migration from the EU will likely be absorbed into the U.K.’s overall immigration program.
Parliamentary Report Makes Case To Protect The 3 Million
The Lords Select EU Justice Committee previously published an advisory report detailing the “acquired rights” of EU citizens in the U.K. post-Brexit. The report indicates that when the U.K. leaves the EU, any rights of residence in the U.K. stemming from EU law will cease to be enforceable. Recognizing the justified anxiety felt by EU citizens over whether their lives in the U.K. can continue post-Brexit, the report recommends that May make a unilateral commitment to safeguard these rights prior to triggering Article 50 as “morally right,” or at the very least put the rights of EU nationals on the agenda as a preliminary and separate item immediately after Article 50 is triggered.
Comprehensive Sickness Insurance Technicality
The report also highlights the issue of the estimated 1 million EU nationals in the U.K. who are unable to meet the criteria for permanent residence as it currently stands, even though they have lived in the U.K. for the requisite five years and frequently far longer. Apart from the practical bureaucratic barrier of an 85-page application form that is difficult for non-lawyers to negotiate, the technical issue barring qualification for permanent residence frequently revolves around the Home Office’s strict interpretation of the requirement for comprehensive sickness insurance.
Scotland and Northern Ireland
Significant for the oil and gas industry in Scotland and corporations operational in Northern Ireland is the fact that the devolved governments in the U.K. do not need to be consulted over the Article 50 process, which was a unanimous decision by the Supreme Court. Therefore, separate deals or concessions cannot be brokered for those regions.
Preparing for Brexit
Even with Tuesday’s ruling, BAL anticipates that Brexit negotiations will begin soon, setting the U.K. up for a departure from the EU in 2019. Now is the time to begin preparing your business as much as possible for a more restrictive immigration scheme for both existing and future EEA employees.
Employers
BAL can assist your company 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:
Critical Dates
BAL urges companies and employees alike to take an informed and thoughtful approach to Brexit. While the 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 strategic planning, please contact us at uk@bal.com.
The Brexit Bulletin has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Prime Minister Theresa May said Tuesday the United Kingdom will leave Europe’s single market, confirming plans for a “Hard Brexit” that would dramatically reshape the U.K.’s economic and immigration relations with the rest of Europe.
May’s remarks set out her government’s Brexit strategy in the most detailed terms offered to date. The U.K. intends to invoke Article 50 of the Lisbon Treaty to formally begin the process of withdrawing from the European Union by the end of March. That would set off a two-year negotiating period that would have the U.K. leave the European Union in 2019.
“We do not seek to hold on to bits of membership as we leave,” May said. “The United Kingdom is leaving the European Union and my job is to get the right deal for Britain as we do.”
Among other points, May said:
May also stressed that while the U.K. wants to be the “friend and neighbor” to the EU, it would look beyond Europe to the wider world as well, taking an international, not isolationist, approach.
Background: The U.K. narrowly voted to leave the EU in June of 2016, in part due to popular disapproval of the “free movement of people” from within the EU and the overall difficulties of managing immigration in the U.K. May has kept her cards close to the vest ahead of the triggering of Article 50. She bowed to pressure Tuesday to provide a more detailed plan, but did not satisfy demands from some corners. May has not, for example, provided a detailed white paper or other written document to submit to MPs for consideration, as some have called for.
What’s clear, however, is that the government will pursue a “Hard Brexit.” Chancellor Philip Hammond separately confirmed, “We cannot be members of the single market because of the political lines around the four key freedoms that the other leaders have set.” One of those freedoms is the free movement of people, which would prohibit the U.K. from controlling migration from Europe if it were to remain a part of the single market. Instead, the government is aiming for a free-trade deal with the EU, leaving the immigration of EEA nationals and their families outside of any trade agreement that might be reached.
BAL Analysis: Brexit will affect all aspects of the U.K. economy, legal system and immigration scheme. May’s remarks all but dashed hopes for a “Soft Brexit,” in which free movement policies and the jurisdiction of the European Court of Justice would remain in place. It is safe to assume that future migration from EU member states will be subsumed in the U.K.’s overall immigration framework. The failure, so far, to offer guaranteed relief for the 3 million EEA nationals currently in the U.K. is a disappointment. Additionally, fear of “cliff edge” change immediately after Brexit has not been allayed, as May made it clear the U.K. should not accept a “purgatory” of long-term transitional arrangements.
BAL continues to follow all Brexit developments and continues to consult both with clients and the government, when possible. Additional Brexit coverage is available in BAL’s Brexit Bulletin. BAL is available to provide analysis for your particular business. Please contact uk@bal.com to discuss strategic planning and the options available to your company.
Last week, the Supreme Court heard final arguments in a case over whether Parliament must have a say in the triggering of Article 50 EU exit procedures. The government brought the appeal after a High Court ruled that Prime Minister Theresa May could not unilaterally trigger Article 50 without Parliament’s approval. The outcome, expected in early January, will certainly impact the timing and tenor of Brexit proceedings.
The lack of any published Brexit strategy is putting Theresa May’s government under increasing strain. New government figures showing that net migration to the U.K. remains historically high are fueling Brexiters’ demand for change, while all indications from the European Commission and EU leaders show a hardline stance whereby negotiations can only take place within strict Article 50 procedures and timelines, with no flexibility on the issue of the “fundamental” right of free movement for EU citizens.
Net migration remains high
Net migration remains at record high levels, hitting 335,000 in the previous year ending in June 2016, according to the most recent government figures. This is the second highest net migration number on record. The Brexit has created a rush to file, and the flow of EU nationals moving to Britain also hit a record number at 284,000. The latest migration figures show that almost 100,000 EU citizens living in the U.K. have applied to the Home Office to secure their status. This surge in applications guarantees that a backlog will develop in a system that has historically processed just 25,500 permanent residence applications per year.
Demand for documentation
Home Secretary Amber Rudd signaled that the U.K. will gradually move to a system that will require EU nationals currently in the U.K. to be documented, rather than allowing them to continue to rely on passports or ID cards alone. Rudd has refused to provide specifics, stating only that there will need to be “some sort of documentation” and that such a system would be introduced “in a phased approach.”
Consequences of new regulations for EEA nationals
The Home Office has implemented new Regulations on EEA Nationals that impose stricter rules on EU/EEA nationals seeking permanent residence permits in the U.K. Applicants should be aware that the Home Office is scrutinizing applications more closely, requesting additional documents, and is expected to reject more applications under these new regulations. As a result of the spike in permanent residence applications, applicants are unlikely to receive decisions within the six-month service standard.
Supreme Court hears Brexit challenge
The Supreme Court has concluded hearings on an appeal of the successful Brexit challenge. The full eleven-member court will decide the constitutional law question of whether the Government must first get Parliament’s assent before invoking Article 50, or whether powers of royal prerogative are sufficient. The case is not about whether Brexit occurs, but how it occurs. If the Supreme Court upholds the lower court’s decision, as expected, MPs will have a greater role in shaping Brexit negotiations. The ruling is expected in early January.
New legal challenge disputes EEA exit
A fresh legal challenge, meanwhile, alleges that the government cannot use the Brexit referendum to withdraw from the European Economic Area without the consent of Parliament. The think tank British Influence has lodged a complaint asserting that the Brexit referendum was a vote on whether to leave the European Union, not the European Economic Area to which the U.K. also belongs; therefore, the U.K. would need to hold another referendum on EEA membership and get Parliament’s approval to trigger separate withdrawal procedures under Article 127 of the EEA Agreement. The government argues that the U.K.’s membership in the EEA hinges on its EU membership, such that once it leaves the EU it will also no longer be a member of the EEA.
“Cake and eat too” strategy
A leaked note indicating that the U.K.’s strategy in Brexit negotiations is to “have its cake and eat it,” put the Government on the defensive. The “cake strategy” refers to the Brexiters’ aspirations to benefit from the single market while abrogating freedom of movement.
A tough stance from EU chief negotiator
In his first press conference on Dec. 6, the European Commission’s chief Brexit negotiator, Michel Barnier made clear that the unity and interests of the EU are his priority, not placating the British. He categorically rejected any option that would allow the U.K. to curb free movement of EU citizens while retaining access to the single market: “The single market and four freedoms are indivisible. Cherry-picking is not an option.” He also set out a stringent timetable for negotiations to conclude by October 2018 to allow time for the EU Parliament, the EU Council and U.K.’s Parliament to implement Brexit by March 2019, two years from when article 50 is set to be triggered.
Status of current EEA migrants in U.K.?
The status of EU nationals residing in the U.K. remains a contentious issue. Keir Starmer, shadow secretary for Brexit, has demanded that May unequivocally guarantee the status of EU migrants already living in Britain as a gesture of goodwill prior to invoking Article 50. May, however, has been reluctant to confirm the status of EEA migrants already living in the U.K. unless British nationals who have settled in the EU are assured the same rights. In an open letter to Downing Street, a group called “the3million,” representing the estimated 3 million EU nationals currently residing in the U.K., have asked for a public guarantee that they will not be treated as pawns in the negotiations.
Preparing Your Company
Brexit negotiations can only begin once the U.K. invokes Article 50. However, now is the time to begin preparing your business as much as possible for a more restrictive immigration regime for both existing and future EEA employees.
BAL can assist with a number of services including:
BAL strongly urges clients to provide any feedback to the BAL London Team, which will inform our government relations strategy and allow us to lobby for positive business-friendly reforms, where feasible, on your company’s behalf.
Copyright © 2016 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.
What is the change? An employment tribunal has found that a company was justified in terminating an employee who had a legal right to abode (to live and work) in the U.K. in fact, but failed to provide specific documentary evidence in line with the right-to-work guidance when requested by the employer.
What does the change mean? The case helps define the steps an employer should take to verify an employee’s right to work under immigration laws and the point at which an employer may terminate an employee without running afoul of employment laws. It also reminds foreign national employees of the need to have specific documentation evidencing their right to work.
Background: The case, Baker v. Abellio London Ltd., involved a bus driver who held a Jamaican passport and a right of abode and was thus entitled to live in the U.K. and freely work for any employer in the U.K. However, during right-to-work immigration checks, the employer found that the employee’s passport containing the right-of-abode endorsement authorizing work had expired. The employee renewed his passport, but did not obtain a new right-of-abode endorsement as requested. As such, the employer was able to terminate employment for failure to evidence the employee’s right to work in line with the specific guidance, despite there being no doubt in fact that he had the right to work in the U.K.
An employment tribunal found that the dismissal was fair because the employer had taken the following steps:
BAL Analysis: While the decision is by a first-tier tribunal that is likely to be appealed, it provides some important guidelines and reminders to human resource professionals who are required to balance employment law protections for employees against company obligations under the immigration rules on right-to-work checks. The decision demonstrates that greater support is likely to be shown to employers – who face a £20,000 fine for employing an illegal worker unless they establish a statutory excuse by adhering to the prescribed right-to-work check procedures – and that a dismissal for failing to provide documentation can in some circumstances be proportionate and fair.
What is the change? Applicants for U.K. visas should prepare for slower processing heading into the Christmas and New Year’s holidays.
What does the change mean? Visa applications centers and premium service centers will close or operate on limited hours or staffing from Dec. 23 to Jan. 2, and applicants should plan for longer timelines when booking their visa appointments and planning business schedules over the Christmas period.
Background: Because Christmas falls on a Sunday this year, official public (bank) holidays will be observed on Dec. 26 (Boxing Day) and Dec. 27 (in lieu of Christmas). Additionally, many visa application centers may be closed or observe half days on Dec. 23 and 24 or operate at reduced capacity during the period Dec. 28-30. Because New Year’s Day also falls on a weekend, this public holiday will be observed and visa centers closed on Jan. 2.
BAL Analysis: Applicants should plan to book their appointments as early as possible and recognize that they may not be able to get an appointment on their preferred date during the Christmas period. In addition, applicants should not book holiday travel without close consultation with their BAL representative.
What is the change? U.K. Visas and Immigration has introduced a fee-based priority service for A-rated sponsors of Tier 2 and Tier 5 workers to make certain change of circumstances requests.
What does the change mean? For an additional fee, mandatory change of circumstances Sponsor Management System updates will be processed in just five working days. This add-on service applies to in-year CoS allocations, follow-on CoS allocations, addition of a new Level 1 user, or replacement of an authorizing officer. The service does not apply to restricted certificates of sponsorship.
BAL Analysis: The service benefits A-rated sponsors who are not registered as premium sponsors. Premium sponsors are already given faster consideration of changes of circumstances. Although at an added cost, the new service means that employers are able to manage their compliance obligations as a licensed sponsor with greater ease and ensure that the Sponsor Management System is more responsive to business changes and needs.