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IMPACT – LOW
British Futures, a nonpartisan, nonpolitical think tank focused on migration and integration issues, has released a report, “Britain’s Immigration Offer to Europe,” which outlines a potential way forward for Brexit negotiators looking to secure access to the European single market without committing to full free movement of people. The report recognizes that the debate has so far focused on either free movement or a “hard Brexit” as mutually exclusive options, but offers a compromise position in which the British public sees more tangible control of migration, and particularly of low-skilled migration, while the remaining 27 EU member states are given sufficient preferential treatment to secure their support.
You can read the full report here.
Key points:
BAL Analysis: BAL considers the proposals to be well-informed, reasonable, fair and business-friendly, yet it is sufficiently inclusive that it would not necessarily cut overall migrant numbers to the degree that the government and pro-Brexit voters seek, and to that extent may still not be politically viable. The report does not deal with the trickier issues of students, self-sufficient individuals, the self-employed, family or derivative rights, and assumes that those already in the U.K. will be protected with a “fair deal,” and thus only addresses part of the larger EU migration picture post-Brexit. BAL recognizes the difficulty for U.K. and global employers operating in an environment of legal uncertainty post -referendum and welcomes comments from the business community that contribute to the policy debate.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
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.
IMPACT – MEDIUM
Scottish First Minister Nicola Sturgeon has said she is prepared to push for a possible second referendum on Scottish independence from the United Kingdom as the U.K. prepares to begin negotiations on leaving the European Union.
The U.K. narrowly voted to leave the EU in June, but Scotland’s voters overwhelmingly voted to remain, creating further tension between the devolved Scottish government and the U.K. government in Westminster.
“I am determined that Scotland will have the ability to reconsider the question of independence and to do so before the U.K. leaves the EU if that is necessary to protect our country’s interest,” Sturgeon said Thursday at a Sottish National Party conference.
Background: Publishing a bill for consultation is only a first step toward a second Scottish independence referendum and is no guarantee that a second vote will be held. That said, it is clear that Sturgeon and May do not see eye-to-eye on the best path forward either for Scotland or the U.K. as a whole, particularly on the immigration issue.
Scotland’s economic need to support the oil and gas industry and other sectors that rely on a mobile migrant work force, and a social commitment to reject what some see as xenophobic proposals, put Sturgeon and May, and Scotland and the U.K., on very different political footing.
BAL Analysis: Whether Scotland eventually develops different immigration policies than the U.K, either by achieving independence or through political negotiations, remains to be seen. Separate immigration policies have been put in place for Scotland in the past (e.g., the Fresh Talent – Working in Scotland Scheme). This approach could allow different, and more flexible, treatment of migrants in a post-Brexit U.K. immigration regime.
This alert has been provided by the BAL U.S. Practice group. 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
Prime Minister Theresa May and Home Secretary Amber Rudd have laid out plans which suggest the U.K. should prepare for a “hard Brexit”, but critics in Parliament and the business community have warned that such an approach could have dire consequences for the U.K.’s access to the European Union’s single market and the free movement of people.
May said she would invoke Article 50 of the Lisbon Treaty to formally begin the U.K.’s withdrawal from the U.K. no later than March of 2017. She and Rudd have doubled down on a goal of reducing annual migration to the U.K. below 100,000 per year, which would require, at some point, reducing migration from Europe.
The government faces opposition from some members of Parliament, though, who say that Parliament should have a vote on the terms of negotiating the U.K.’s withdrawal from the EU. There’s also a question of whether May herself can trigger Article 50, an issue that will be the subject of a High Court hearing this week.
The good news for now: It appears that even after the U.K. leaves the EU, which will happen no sooner than 2019, EU workers in the U.K. at the time of the Brexit will retain their status – with many believed to be eligible for permanent residence at or before the point when the U.K. leaves the EU. However, there is little clarity over what immigration framework is likely to be implemented post-Brexit.
Immigration
May said at a Tory Party conference recently that she would not seek a Norwegian or Swiss-style arrangement with the EU, where the U.K. would have access to the single market and retain freedom of movement within Europe.
“It’s not going to be a Norway model,” she said. “It’s not going to be a Switzerland model. It’s going to be an agreement between an independent, sovereign United Kingdom and the European Union.”
May and Rudd would like to reduce annual migration to the U.K. below 100,000 – a goal of former Prime Minister David Cameron’s that he never achieved. This plan could involve abandoning the points-based system for non-EEA nationals and, post-Brexit, EEA nationals as well. Whether a work permit system, with caps on immigration numbers, would be introduced to replace the points-based system remains to be seen.
New Proposals
Rudd outlined plans for reducing European migration in the long term while focusing on other measures in the short and medium term. Specifically, Rudd said the U.K. should:
Rudd also profiled some of the Immigration Act 2016 reforms, including making it a crime for landlords to rent to tenants known to be in the country illegally and requiring immigration checks for taxi drivers. These changes are set to take effect in December.
The proposal to force companies to report the number of foreign workers they employ was particularly controversial, but Education Secretary Justine Greening clarified in recent days that this information would not become public and would only be used by the government to identify areas of skills shortages in the U.K. workforce.
Work Rights Post-Brexit
While the U.K.’s future immigration policies for EU member states have not yet been set, the status of EU workers in the U.K. – and U.K. workers in the EU – will not change until at least 2019. May has said that at the time of the Brexit, “existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am prime minister.”
Press reports indicate that roughly 80 per cent of EU nationals living in the U.K. could be eligible for permanent residence when the U.K. leaves EU – and that the U.K. might grant the remaining 20 per cent amnesty to stay in the country.
Changes on hold
What seems clear at this point is that the Government is increasingly seeing the development and implementation of its migration policies in the context of the Brexit.
Changes to the Tier 2 visa categories announced in March – before the Brexit vote – were expected to take effect this fall, but no date has been announced yet. The delay is most likely due to the further changes that May has indicated will be made within the Tier 2 categories and, possibly, other changes to the immigration system, but few details are available at this time.
Politics
Parliamentary Hurdles
The government is facing opposition from some members of Parliament, both in terms of the substance of its proposals and the process of negotiating the U.K.’s withdrawal from the EU.
“Nobody gave the government a blank check here,” said Sir Keir Starmer, Labour’s shadow Brexit secretary, in an interview with the BBC. “We must have a vote on the opening terms of the negotiation.”
May said a “Great Repeal Bill” would be introduced to remove the 1972 European Communities Act, which gives effect to EU laws in the U.K., from the statute book. The bill would convert existing EU law into British law. It would take effect the day the U.K. leaves the union, but what portions of the law might be changed – and how that would affect migration – remain to be seen. The repeal could provide another opportunity for Parliament to shape the post-Brexit landscape.
“Only Parliament can repeal Parliament’s legislation,” said Scottish Conservative MSP Professor Adam Tomkins. “The government can’t do that and when parliament repeals its legislation it will be parliament that legislates for what replaces the European Communities Act, not Theresa May.”
Legal challenge
There’s also the question of whether May herself can invoke Article 50. May and Attorney General Jeremy Wright have both said that the decision on when to invoke Article 50 rests with the Government. However, a group of Brexit opponents has filed a lawsuit, arguing that Article 50 can only be invoked through an Act of Parliament. A High Court hearing on this question is set for Thursday.
Business
The business community has expressed concerns over the current climate.
“Businesses will not welcome further restrictions on high skilled migration from key trading partners around the world, especially as a series of changes were only announced earlier this year,” Josh Hardie, CBI Deputy Director-General, said in a statement. “At a time when we need strong links globally to seize new opportunities after the referendum, being seen as open to the best and brightest is vital. And we should be clear that business does not see immigration and training as an either/or choice. We need both.”
Companies with concerns about how Brexit-related immigration changes might affect their business are urged to share these with the BAL London Team.
Preparing Your Company
Brexit negotiations will begin once the U.K. invokes Article 50, but now is the time to begin preparing your business for what lies ahead. BAL can assist with a number of services including:
BAL strongly urges clients to provide feedback on both Brexit and additional Tier 2 changes with the BAL London Team.
Should you have any questions or require more information on how BAL can help with Brexit 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.
IMPACT – HIGH
Prime Minister Theresa May has announced that she will invoke Article 50 of the Lisbon Treaty and formally begin the process, no later than March 2017, for the United Kingdom to leave the European Union.
May’s timetable would set up the U.K. to leave the EU around the spring of 2019 following at least two years of negotiations.
Background: U.K. voters narrowly approved the Brexit referendum in June, creating questions about when and how the U.K. would leave the EU – and what the immigration impacts would be. May and Attorney General Jeremy Wright have both said that the decision on when to invoke Article 50 rests with the Government. However, a group of Brexit opponents has filed a lawsuit, saying that Article 50 can only be invoked through an Act of Parliament. A High Court hearing on this question is set for Oct. 13.
BAL Analysis: Brexit negotiations will not begin until next year. The status of EU workers in the U.K. and U.K. workers in the EU has not changed, and no new immigration regime has been formally proposed. Businesses can begin preparing for the post-Brexit landscape, however. BAL is able to assist in a number of ways, including assessing clients’ EU dependency; tracking EEA employees and new hires; and exploring EEA employee options, including the possibility of permanent residency and British citizenship.
What is the change? The United Kingdom is expected to implement a number of changes to Tier 2 skilled worker visa categories this fall, including increasing the Tier 2 (General) salary to £25,000, phasing out the Skills Transfer sub-category as part of a broader overhaul of the Tier 2 (ICT) category, applying the immigration health surcharge to all intracompany transfers and giving extra weight to overseas graduates within the Tier 2 (General) quota.
What does the change mean? The reforms were announced in March and are the first phase of changes to the Tier 2 categories, with additional changes expected to be implemented in April and July of 2017. No exact implementation date has been set, but once the changes go into effect, they will raise costs for employers sponsoring employees and intracompany transfers under the Tier 2 route. Businesses that will be impacted should begin preparing now.
Background: The Home Office announced the changes in Marchafter receiving recommendations from the Migration Advisory Committee, an independent body that advises the government on immigration. Among key changes that are due take effect this fall:
Additional changes will be implemented in 2017. It remains to be seen when, exactly, the autumn changes will be implemented and whether there will be additional changes besides those that were announced in March. BAL Analysis: The changes the Home Office announced earlier this year will increase costs for a number of U.K. businesses. Employers should work with their BAL team to prepare for the changes this fall and next year. BAL will continue to follow events in the U.K. and provide notice to clients when firm implementation dates are announced.
What is the change? The U.K. government has clarified the police registration requirement for certain nationalities, where the requirement has not been endorsed on visas.
What does the change mean? The police registration condition no longer appears on biometric resident permits, but rather on 30-day entry clearance vignettes that are issued to allow entry into the U.K. Those requiring police registration must bring the vignette and a copy of the letter approving their leave to remain in the U.K. to show the police when registering. The U.K. government has clarified that those who have already traveled to the U.K. with a vignette with an incorrect endorsement must apply to have it amended.
Background: Police registration is required for migrants from a number of countries who plan on coming to the U.K. for more than six months, who extend their current leave or who obtain a different type of visa. Some exemptions exist, including for family members of EEA nationals. For those for whom it is required, registration must be completed within seven days of arriving in the U.K. Migrants must bring their vignette and a copy of the letter approving their leave to remain when registering. It is advised that the vignette be amended before travel where possible due to the requirement to register with the police within seven days of arrival.
BAL Analysis: Employers should take note of the requirement and work with BAL to ensure that affected employees register with the police within seven days of arriving in the U.K. BAL is available to review visas before travel and to provide assistance if visas have not been properly endorsed. 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 United Kingdom will soon launch a passport return service that will allow EEA and Swiss nationals to travel abroad while permanent residence and residence card applications are pending.
What does the change mean? Beginning Oct. 1, EEA and Swiss nationals will be able to submit EEA(PR) or EEA(QP) (residence card) applications online and make appointments with participating local authorities. The local authorities will send photocopies of applicants’ passports to the Home Office and then return the passports to the applicants, allowing them to travel while their applications are pending.
Background: The passport return service will be provided by local authorities in England and Wales. Applicants will be able to submit their EEA(PR) or EEA(QP) forms online and then make an appointment with the appropriate local authority within five days. That authority, in turn, will copy the applicant’s EEA or Swiss passport before sending a copy of the passport, checklist and application to the Home Office for processing. Local authorities will have no bearing on the success of residence applications, nor will they be available to provide advice on how to complete applications.
BAL Analysis: The primary benefit of the new program is that affected EEA and Swiss nationals will be able to travel while their permanent residence or residence card applications are pending. Contact BAL for help in preparing your residence application or gathering the appropriate supporting documentation.
Political
Timing of Brexit trigger still undecided
The timing of the U.K. government’s triggering of Article 50 exit procedures remains unclear. British Prime Minister Theresa May is expected to trigger exit procedures early next year, but the Brexit cabinet ministers may need until autumn 2017 to prepare for negotiations, according to The Sunday Times. The U.K. may also wait until after French and German elections next year before triggering Article 50.
Norway on UK’s EFTA membership
The U.K.’s option to join the European Free Trade Association as an alternative to EU membership could be vetoed by Norway, the largest economy of the four-nation bloc, which may not wish to be overshadowed by the larger U.K. economy, according to comments made by Norway’s minister for European affairs.
Rush to file would strain resources
If the roughly 3.5 million European nationals in the U.K. rush to file for permanent residency following the U.K.’s exit, the strain on resources would be significant – equivalent to 140 years of applications in one year, according to a report this month by Oxford University’s Migration Observatory. More than 500,000 EEA nationals living in the U.K. who arrived by early 2016 will not have the requisite five years of presence to qualify for permanent residency if the U.K. completes exit procedures in two years.
Read the full report here.
Post-Brexit economic data due out
This week, the U.K.’s Office of National Statistics will release July economic data, which should provide hard numbers on the effect of the June 23 Brexit vote, including figures on unemployment, inflation, retail sales and the budget. The first of these figures released Tuesday indicates that inflation rose from June and is at its highest since November 2014.
London’s future
Some economists are predicting that Brexit may hit London the hardest economically because of its reliance on banking and financial services in the EU. London Mayor Sadiq Khan has said he is confident that the city will remain part of the single market, but warned that other European capitals are already seeking to woo businesses away.
Things to Know
Employers less optimistic about hiring
A survey released Monday finds that employers have grown less optimistic about expanding their workforces since the Brexit vote. Before the vote, 40 percent of employers intended to hire in the next three months; after the vote, the number dropped to 36 percent. Thirty-three percent of employers anticipate that the Brexit will increase business costs and 21 percent expect to reduce investment in skills development and training as a result of the Brexit.
Read the press release by the Chartered Institute of Personnel and Development here.
Preparing Your Business
Under the uncertainty of Brexit, many businesses with EU/EEA employees and assignees living in the U.K. will be thinking about how to ensure their continued work and residence rights in the U.K. Planning is key to a smooth transition with the least amount of business disruption. BAL can assist with the following:
Should you have any questions or require more information on how BAL can help with recording and tracking your employees’ eligibility for permanent residence, 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
What is the change? The U.K. has expanded its 24-hour Super Priority visa service to applicants in Nigeria.
What does the change mean? Visa applicants traveling on urgent and short notice now have an option to obtain a visa within 24 hours.
Background: The British High Commission in Abuja announced the new Super Priority visa service Aug. 9. British High Commissioner Paul Arkwright said he expects the service to be “particularly useful” for business travelers. “We understand that business opportunities and urgent requirements can arise at very short notice,” Arkwright said. “We recognise this and want to facilitate such travel to the U.K. with this new super-fast service.” Additional information on the program is available on this government website.
BAL Analysis: The availability of 24-hour service adds an option for those seeking urgent travel from Nigeria. Other options include five-day priority service and 15-day service standard processing. Applicants should note that choosing expedited processing does not guarantee a positive decision in the visa application process.
What is the change? The High Commission of India in the United Kingdom has announced that biometric enrollment will soon become mandatory for applicants in seven visa categories, including employment visas.
What does the change mean? Beginning Aug. 19, visa applicants will be required to appear in person and submit biometrics (a facial image and fingerprints) when applying for employment, journalist, research, student, visit (applicable only to Pakistani nationals), project or missionary visas. The change will take effect at all 14 Indian Visa Application Centres in the U.K.
Background: Biometrics will be taken when visa applications are submitted at any of the 14 Indian Visa Application Centres. Applicants must appear in person to submit biometrics. Exceptions to the biometrics requirements will be made for applicants under 12 or over 70 years old.
BAL Analysis: The introduction of mandatory biometrics enrollment adds a step to the visa application process for those applying for Indian visas in the U.K. Contact your BAL professional if you have questions about the program.