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IMPACT – HIGH
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.
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
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.
What is the change? The U.K. Supreme Court has upheld the immigration rule that imposes a minimum-income requirement for British citizens and permanent residents looking to sponsor their non-EEA dependents in the UK.
What does the change mean? The ruling does not affect visas for dependents of Tier 2 workers or other points-based system migrants, or any European nationals and their family members. While the minimum-income requirements will stay in place for British citizens and permanent residents, the Court has demanded greater evidential flexibility for the family to show alternative sources of funding, and a rewrite of the extremely prescriptive “specified evidence” guidance is now expected.
Background: The minimum-income threshold for spousal visas has been a requirement since 2012. The British citizen or permanent resident must demonstrate minimum income of £18,600 in order to sponsor their non-EEA spouse or partner to come to or remain in the U.K. The threshold increases to £22,400 if the family has a non-EEA child, and by £2,400 per child thereafter. Notably, the income of the non-EEA spouse or partner cannot be taken into consideration, which severely disadvantages families in which the British citizen or permanent resident does not work or is not the main breadwinner.
A group of families who were unable to meet the income requirement and therefore living in separate countries challenged the rule in the Supreme Court, arguing that it impeded their rights to family life. Evidence was given to show the current level of the minimum-income requirement prevents 41 percent of the U.K. working population from being a sponsor, and 55 percent of working women. The court upheld the principle of imposing a minimum-income requirement as a legitimate means to reduce net migration and ensure that family dependents are not a drain on public resources. However, the Court also recognized that the rule was especially harsh for families who have been separated from children because they are unable to meet the income threshold and asked guidance to be reconsidered on which assets can be relied upon to demonstrate family resources and how the rights of children can be better considered in overall decision making.
BAL Analysis: The ruling does not affect Tier 2 and other points-based system skilled workers and their dependents or the current European free movement regime for EEA nationals and their family members. Although the case does not directly address the impact on European nationals, the fact that the court has upheld the use of minimum-income requirements as a legitimate means to limit net migration to the U.K. overall suggests that such limits may apply in the future to EEA national spouses post-Brexit, albeit with much greater evidentiary flexibility.
What is the change? A draft regulation has been issued that details how the government will implement the new Immigration Skills Charge paid by companies hiring skilled foreign workers.
What does the change mean? Companies will be charged £1,000 per certificate of sponsorship per year of sponsorship per migrant (smaller companies with up to 50 employees and charitable organizations will be charged £364). The regulation sets out the full schedule for the Immigration Skills Charge and exemptions for certain skilled workers and certain occupational codes.
Background: The Immigration Skills Charge, first announced in March 2016, requires Tier 2 employers to pay additional monies to support a general government fund for skills training initiatives for British workers. Companies will be required to pay the charge each time they assign a Tier 2 certificate of sponsorship to a skilled worker via the Sponsor Management System.
The rate is £1,000 per year per worker for any company with more than 50 employees, payable up front at the certificate of sponsorship stage based on the length of employment entered on the CoS. There is a minimum of 12 months employment required, and calculated in six-month increments thereafter. For example, a six-month CoS would attract no charge, a 2 ½-year CoS will attract a £2,500 charge and a five-year CoS will attract a £5,000 charge. This charge is in addition to the CoS fee, visa application fee and immigration health surcharge linked to any Tier 2 migrants. It is also separate from the “apprenticeship fund” to be launched by the Department for Enterprise in April. Exemptions from the charge include:
There are no exemptions for employers who already invest in training schemes and resident worker employment initiatives, as the monies will be spent directly by the government, i.e., employers cannot apply to access these funds for their own sectors or initiatives.
Refunds of the skills charge will be given in the following instances where the Tier 2 worker never actually starts work:
The Home Office policy team has indicated they will consider allowing refunds in other circumstances – e.g., under current rules, if a five-year employee leaves employment there is no way to recover the charge—but these are not confirmed.
BAL Analysis: Employers should budget for the Immigration Skills Charge, which will take effect April 6 and must be paid up front for the full duration of each certificate of sponsorship.
BAL will be discussing the Immigraiton Skills Charge, along with other key Tier 2 changes and other immigration changes, in more detail at our webinar on March 23. Registration is available here.
What is the change? A House of Lords select committee is seeking submissions on the impact that reduced migration from Europe post-Brexit would have on the U.K. labor market.
What does the change mean? Written submissions must be completed by Monday. The inquiry is aimed at examining how limiting migration from Europe would affect business and the U.K. economy—would it boost job opportunities for resident workers or will it deprive companies of access to a migrant labor force that is crucial to their success?
Background: The Economic Affairs Committee of the House of Lords is conducting its inquiry as the U.K. prepares to invoke Article 50 of the Lisbon Treaty to formally begin the process of leaving the European Union in March. Committee recommendations are expected to be made in early May and are likely to inform government policy on any immigration system post-Brexit. (BAL understands that all ideas are currently “on the table.”)
Besides seeking information on the overarching question of what the impact of Brexit on the labor market will be, the committee is inviting public feedback on (1) what level of migration is required for the U.K. labor market to function effectively; (2) the impact on wages in different economic sectors of restricting migration from the EU and further restricting migration from outside of the EU; (3) whether the government has adequate data on the immigrant worker population to make sound policy decisions; (4) whether the U.K. should consider regional variations to its immigration policies; (5) whether policies to control the level of migration from non-EU countries have been successful; and (6) what the U.K. can learn about immigration policy from other countries.
The committee has said that the inquiry is not focused on the status of EU nationals already living in the U.K.
BAL Analysis: Respondents do not have to answer every question and are asked to keep submissions short. Therefore the inquiry provides a good opportunity for companies to provide feedback on how a reduction in migration/restriction in employment rights for European nationals would affect the ability to access necessary skills from the market or to operate effectively as a U.K. employer. As EU migration routes are used to fill higher skilled positions in tech, financial services, pharma and other sectors, as well as low-skilled roles that arguably garner more political attention, multinational employers should make clear the impact of any reduction in overall access to visas.
What is the change? The Home Office has released a new guidance for sponsors highlighting several important changes to Tier 2 rules beginning April 6.
What does the change mean? Changes to the immigration rules are expected to be announced in March and to take effect April 6, including the new immigration skills charge of £1,000 per certificate of sponsorship.
The sponsor guidance now contains an addendum making clear that the immigration skills charge will come into effect April 6 as anticipated:
The sponsor guidance also now announces some other minor changes to the rules for Tier 2 migrants:
BAL Analysis: Employers should budget for the additional Immigration Skills Charge for all transfers and new hires now in the pipeline, as well as prepare for the other changes taking effect in April, which were highlighted last March when they were first announced. BAL will provide further news alerts as soon as the Statement of Changes to the Immigration Rules is available in mid-March and will be discussing the business impact of these changes in our upcoming client webinar.
IMPACT –MEDIUM
What is the change? Non-EEA family members may now file residency applications online and take advantage of the passport passback service.
What does the change mean? The online process is more convenient, and the passport passback service allows EEA nationals and their family members to retain the ability to use their passport and ID card while the residence card is awaiting processing in the U.K.
Background: The paper form and application process have been replaced by an online application process for a residence or permanent residence application for Europeans living in the U.K. seeking to document their status, with the following important process improvements:
BAL Analysis: These process improvements are a step in the right direction, although they do not improve overall processing times, which remain at six months. The passport passback service allows for greater ease of travel when applying for permanent residence based on five years of continuous residence and gives a greater incentive for companies to document their employees’ right to work under European law prior to Brexit in 2019.
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.
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.
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.