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IMPACT – HIGH
What is the change? British voters head to the polls Thursday to vote on whether to “Leave” or “Remain” in the European Union.
What does the change mean? If the “Leave” campaign prevails, U.K. immigration policy will change and employers that rely on U.K. nationals working in Europe and European nationals in the U.K. will need to manage expectations immediately after the vote and strategize for potential disruption in the long term.
Background: The Brexit referendum is the culmination of long simmering political pressure by Eurosceptics. Immigration and the free movement of migrants, which come with EU membership, are at the heart of the debate and, as such, if Britain leaves the EU, more restrictive immigration measures will be introduced.
BAL Analysis: In the event of a “Leave” win, it is critical that employers immediately address their workforce and begin contingency planning as early as possible. Please click here to read BAL’s detailed analysis.
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
The British electorate will vote Thursday on whether the United Kingdom should leave the European Union. During the final countdown to the “Brexit” referendum, campaigning for both the “Leave” and “Remain” camps will intensify, but current polls show the “Leave” campaign has the majority.
Employers should anticipate that it is more likely than not that the U.K. will leave the EU and, from an immigration perspective, is unlikely to continue to be subject to European rules on free movement of people.
Political Background
The stakes in the Brexit referendum are huge, as it will define Britain’s legal relationship with its European allies, its position on the global stage, and will impact the ongoing stability of the EU. Immigration policy has been a key issue during the Brexit debate, due to the immediate refugee crisis, but also because of longer term social changes and pressures in the U.K. that many attribute to migration. The legal rights of free movement of goods, services and people that underpin the EU’s creation of a single market will most likely be lost in the U.K. if the U.K. chooses to leave the EU. Going forward, U.K. employers may not have the ability to move employees freely as assignees or to deliver specific contracts or take advantage of helpful rulings from the European Court of Justice that allow great immigration flexibility against restrictive national legal regimes. Employers should take steps to evaluate their exposure in event of Brexit, and be prepared to communicate with affected employees as any changes take place.
Who is affected?
The immigration impacts of leaving the EU will be felt on four employee populations:
Next Steps
It is essential that employers prepare for managing their response to the referendum result and devote some time to strategize how recruitment and employment practices (among other economic, legal, social and political factors) would be impacted by a “Leave” vote. BAL recommends that employers take all practical steps to prepare for the Brexit result next week, including:
Work in the U.K. on basis of European passport and have a long-term right to work, and so may not currently be tracked.
Work in the U.K. on an EEA Family Permit/Residence Card and have a time-limited right to work, and so should already be tracked.
Work within Europe on the basis of a British passport, but are managed from the U.K.
Employers can consider whether “leave” or “remain” will best serve their business and future job security for their employees, and whether it is appropriate to communicate the company’s position with employees.
Employers may want to prepare an all-office press release for either eventuality, to reassure both British and European employees. The aim should be to reduce panic and manage any transition. BAL can provide suggested text.
Additional information: BAL is running a seminar on the immigration impacts of Brexit on Monday and can provide advice on communications and strategy to minimize business and employee disruption in the event of a Brexit.
What is the change? The Saudi Arabian Embassy in London has begun imposing new prerequisites on U.K. employers applying for Commercial Visit and Work Visit Visas.
What does the change mean? All business support letters must be attested by the London Chamber of Commerce. Employers must first register with the Chamber and then obtain an attestation from it before applying for Commercial Visit and Work Visit Visas. In order to register, the employer company needs to submit a Formal Undertaking form listing all the company’s authorized signatories along with samples of their signatures. Please note: The business support letters can only be signed by those listed as signatories on the Formal Undertaking form.
Background: The Saudi Embassy in London has instituted several changes to all applications in recent months following a change in consular staff.
BAL Analysis: U.K. employers applying for Saudi Commercial Visit and Work Visit Visas in London should factor in the additional steps and anticipate longer timelines in light of the new requirements.
IMPACT – LOW
What is the change? The production of biometric residence permits (BRPs) is experiencing technical issues affecting approximately 600 permits.
What does the change mean? Some permits will be delayed because of a date transmission problem between the Home Office and the Driver Vehicle Licensing Agency. The permits are expected to be delivered to postal offices and available by early to mid-next week.
Background: The Post Office announced April 11 that some BRPs have been delayed due to technical issues. The Home Office confirmed that there have been delays in transmission of data through secure links between the Home Office and the Driver Vehicle Licensing Agency. Some of the requests automatically timed out after remaining in queue and had to be resubmitted. The Home Office confirmed that 600 permits (not 6,000 cited by the Post Office) were affected, but the permits are expected to be printed and distributed by next week. The underlying data transmission problem is still being investigated.
BAL Analysis: Employees with pending BRP applications should expect minor delays and plan business schedules accordingly.
What is the change? UK Visas and Immigration has published a comprehensive updated immigration policy guidance that encompasses rules for sponsors and points-based applicants.
What does the change mean? Applications submitted are now subject to the updated guidance that implements various immigration rule changes announced in the first quarter of 2016. Old versions of the guidance should be deleted and replaced by the new guidance only, which is accessible here.
Key changes: The new guidance has been issued to reflect various changes across the Immigration Rules. Key changes of practical note to employers and educational sponsors include:
Students – The guidance clarifies that short-term students must “genuinely intend to study” in the U.K. and that the route can be used for students retaking modules. Other changes to Tier 4 student rules include elimination of the English language requirement for those on study-abroad modules from U.S. universities, clarification of who can work or undertake a placement while in the U.K., and an update on circumstances in which a student can change courses.
Employers – Tier 2 guidance has been updated, including the revised distribution of Restricted Certificates of Sponsorship throughout the year, as reported in March. The revised guidance clarifies that salaries may include guaranteed bonuses and allowances paid as standard to settled workers in the same role, and cost of living allowances for intra-company transfers only. The minimum salary for settlement applicants of £35,000 is now in force and will increase annually.
Other – The Tier 5 (Temporary Worker) International Agreement category includes the addition of EU agreements with Georgia, Moldova and Ukraine. The new guidance contains an updated list of providers for English language tests and penalties provisions for private landlords under the Right to Rent provisions.
BAL Analysis: This guidance does not incorporate changes arising out of the Migration Advisory Committee recommendations for Tier 2 or the Immigration Minister’s March 24 statement. Those changes will be profiled by BAL as soon as legal reforms are finalized. Minimum salary levels of £20,800 for Tier 2 (General), £24,800 for short-term staff, £41,500 for long-term staff and £155,300 for high earners in force since April 2015 remain in place, but will likely change some time in the fall of 2016.
The new guidance is a reminder for employers to review compliance policies, particularly in light of enhanced requirements. While the U.K. essentially operates a “self-certifying” work permit scheme, employers can be liable for a range of penalties (fines up to £20,000 and suspension or cancellation of their license) plus loss of reputation if they do not have in place the requisite systems to meet ongoing sponsor record-keeping and reporting obligations. Employers are now required to keep on file all documents relating to sponsor license applications, all shortlisted applications that form part of a Resident Labour Market Test, and copies of employees’ qualifications including degree certificates, among other documents. BAL has prepared a compliance guide for employers, and is available to provide audits and further training on the rules and our various support tools if needed. Please contact your BAL professional for assistance.
What is the change? The U.K.’s visa contractor, VFS Global, is offering several new services to visa applicants in India for additional government fees.
What does the change mean? The new services include walk-in appointments for urgent travelers, “home-to-home” options such as chauffeur service, longer business hours, premium lounge and other personalized services, group appointment booking, a digital assistant, an online payment option, and a final application review.
Implementation time frame: Immediate and ongoing.
Who is affected: U.K. visa applicants in India; some services are limited to certain jurisdictions in India. The walk-in service is also available to Indian applicants applying for Irish visas.
Impact on processing times: The service options do not necessarily affect processing times but may expedite the overall process in completing the application steps.
Business impact: The additional services provide flexibility and convenience for those needing urgent service or personalized assistance.
Background: The new options are as follows. Government fees for the special services are on top of normal government visa fees.
BAL Analysis: The U.K. is expanding optional services to applicants in India that have proven popular in other countries. Applicants are reminded that use of these optional additional services does not guarantee a successful visa decision.
What is the change? The Home Office has announced major reforms to the Tier 2 skilled worker categories in a response to the Migration Advisory Committee’s January recommendations.
What does the change mean? The reforms will raise costs for employers sponsoring employees and intracompany transfers under the Tier 2 route. Among the changes, minimum salaries will be increased and an immigration skills charge of £1,000 per year per migrant will be imposed on Tier 2 employers beginning April 2017.
Summary of changes:
BAL Analysis: The Home Office has adopted many of the measures recommended by the Migration Advisory Committee. Employers should work with their BAL team to prepare for the changes in the coming year.
What is the change? Under changes to Immigration Rules, the annual quota for Tier 2 (General) visas will remain at 20,700, but the monthly quota distributions will change.
What does the change mean? The redistribution allows for higher quotas from April through September, with the aim of accommodating the peak graduate summer hiring season. Any unused slots will be eligible to carry over into the following month. However, projected hiring rates indicate that they are more likely to be used when they are allocated rather than carried over.
Background: Currently, the annual allocation of Tier 2 Restricted Certificates of Sponsorship is divided equally each month. When one month’s allocation is fully used, applications are carried over to the next month. Under the new rules, the following Tier 2 (General) allocations will apply:
BAL Analysis: The change in Tier 2 allocations will better accommodate the surge of applications in the summer, when employers onboard large numbers of new graduates, but it will also mean that the quota numbers are front-loaded and fewer will be available toward the end of the fiscal year. Given that allocation is prioritized according to salary, sectors that recruit higher earners will continue to be protected more than those that provide lower salaries.
Please note that further revisions to the Tier 2 routes are expected in upcoming Immigration Rule changes in response to recent recommendations by the Migration Advisory Committee. BAL will advise clients of these changes as soon as they are published.
U.K. voters will decide in a June 23 referendum whether Britain will remain in the European Union or exit (“Brexit”) the 28-nation bloc. Voters will cast their ballots on whether the U.K. should “remain” in or “leave” the EU, and a simple majority will decide the outcome.
Depending on the outcome of the referendum, U.K. immigration policy allowing “free movement” (and therefore the right to work and access benefits in the U.K.) for EEA nationals and their family members could change. Even if voters do approve a British exit, EU procedures require a transition period of up to two years in which a withdrawal agreement must be negotiated and approved by the European Commission and Parliament before the U.K. could terminate its obligations under EU treaties, including free movement rules.
Political background
In 2013, facing pressure from Eurosceptics within and outside his party, Prime Minister David Cameron promised a Brexit referendum if his Conservative Party won 2015 elections. Having announced the referendum last month, Cameron is campaigning against a Brexit, saying that while reform is required, Britain will be economically stronger and politically safer by remaining within the EU. On Feb. 19, Cameron negotiated an agreement with heads of EU member states providing a mechanism to amend the U.K.’s obligations under EU free movement and social security law. Given that EEA migrants’ access to U.K. benefits has been a major political issue, these potential reforms may be enough to secure a “remain” vote. Those who support a Brexit, including London Mayor Boris Johnson, argue that EU reform is not enough and Britain would do better to be free of the EU regulatory framework (which insists on free movement of goods, services and people, as well as numerous legal commitments including common agricultural and fisheries policy and rules on competition, monetary union and sovereignty).
Brexit and Migration
Immigration and free movement of migrants within the EU is a key issue in the Brexit debate. Free movement is a fundamental tenet of EU membership. Currently, the U.K. must admit any EEA national or accompanying non-EEA family member (including spouses, unmarried partners, children, parents and other designated family members) for work, study or as self-sufficient without visa restrictions and allow automatic permanent residence after five years in the U.K. EEA nationals and their family members therefore form a significant proportion of the migrant labor population in the U.K. Bids to significantly reduce migration to the U.K. are arguably impossible to meet without restrictions on EEA migration, but nothing short of a full removal from the EEA could deliver reduced migration.
Consequences of a Brexit
While the consequences of a Brexit are difficult to predict, the following scenarios are the likely possibilities, each carrying its own impact on the status of EU nationals in the U.K.:
Similarly, in the event of a Brexit, the immigration status of British citizens living in another EU member state would change, most likely with reciprocal arrangements put in place.
A Brexit would also make travel within the EU slower and more cumbersome. It is unclear if all EU nationals would remain exempt from visa requirements. They would no longer be able to use EU fast lanes at U.K. airports and would be required to fill in landing cards. Reciprocal arrangements would similarly impact British citizens traveling in the EU.
BAL Analysis: Withdrawal from the EU is unprecedented, making it difficult to predict the consequences of a Brexit. In the worst-case scenario, it would result in the elimination of visa-free migration for EEA nationals and EEA family members, who would need to fulfill Tier 2 or other points-based system visa requirements. The status of EEA nationals and EEA family members already working in the U.K. would most likely be maintained without disruption. BAL is closely following the referendum and will update clients on any significant developments in the months leading up the June 23 vote.
What is the change? As of April 6, applicants for points-based visas will no longer be able to use the Points Based Calculator self-assessment tool to determine if they meet the English language requirements. UK Visas and Immigration Service is eliminating the calculator as of April 10.
What does the change mean? Applicants who have not achieved a degree from a deemed English-speaking country will need to obtain an assessment of their qualifications from the National Recognition Information Centre (NARIC), an agency that provides advice on international qualifications.
Background: UK Visas and Immigration announced that it is phasing out the self-assessment tool due to cost. NARIC will take over the assessment of academic qualifications for immigration purposes beginning April 6.
At present it can take up to 10-15 working days to receive an English Language Assessment. A fast-track option (at additional cost) can expedite processing to 24-48 hours.
BAL Analysis: Employers should expect longer timelines for Tier 2 applications and all points-based applications, as they will need to go through an extra step of obtaining certification through NARIC and also an English language test, if necessary.