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POST-BREXIT IMMIGRATION UPDATE –WHITE PAPER PUBLISHED

The UK government published a White Paper yesterday setting out its plans for post-Brexit immigration, which are expected to be brought into force from 1 January 2021.

The long awaited White Paper (WP) is the official approval by the government of the recommendations made by the Migration Advisory Committee in September 2018.

Click here to view the full white paper.

Post-Brexit Immigration

The White Paper proposes a single, skills-based immigration system, focused on talent and expertise rather than nationality. Essentially the proposal is to continue with our existing points based immigration system but to bring EU nationals within it.

It includes the following positive changes:

  • Removing the quota on Tier 2 General visas: The WP proposes to remove the cap on these visas which is currently set at 20,700 per year.
  • Removing resident labour market test: The WP proposes to abolish the requirement for employers to complete a Resident Labour Market Test (RLMT) before sponsoring a foreign worker for a Tier 2 General Visa. Currently, employers are required to advertise a vacancy for 28 days to confirm that no British or EEA nationals are suitable for the role.
  • New short-term visa for low-skilled workers: The WP proposes to create a new visa category for low-skilled workers, allowing initial visas up to 12 months that will not require employer sponsorship. The 12 month visa will provide the right to work, but people arriving on this route will not be able to bring family members with them or take benefits nor will they accrue rights to settle in the UK. They will also have a 12-month cooling off period once their visa expires.
  • No visa for EU visitors: The WP proposes that EU nationals would be able to enter the United Kingdom for short-term trips as tourists or business visitors without a visa.
  • Consultation on salary threshold: The WP confirms that UK authorities will launch a public consultation on the current minimum salary requirement of £30,000 for Tier 2 (General) Visa applications.
  • There are also proposals for improved border security checks and an Electronic Travel Authorisation (ETA) Scheme including allowing citizens from Australia, Canada, Japan, New Zealand, USA, Singapore and South Korea to use e-gates to pass through the border on arrival, alongside EU and UK citizens.

The proposed changes would partly address a number of concerns expressed by businesses over the past months, including the anticipated drain of low-skilled EU workers after Brexit. It would also hopefully make the system much quicker given the removal of the Tier 2 quota and the RLMT. Conversely, the government admits that these proposals could reduce the UK workforce by between 200,000 and 400,000 EEA nationals over the first 5 years meaning that GDP would be between 0.4 and 0.9% lower than it otherwise would have been in 2025.

This new immigration system will be implemented in a phased approach from 2021 following an extensive 12-month programme of engagement with businesses, stakeholders and the public by the Home Office. The proposals may of course change depending on any future trade deal struck with the EU.

EU Citizens already living in the UK

It is important to note that the White Paper outlined above is about the UK’s future post-Brexit migration system and does not affect EU citizens already living in the UK, who will be able to (and will need to) apply for “settled status” in order to stay legally after Brexit.

In summary under the terms of the proposed Settlement Scheme:

  • EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for “settled status” enabling them to stay indefinitely;
  • EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for “pre-settled status”, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status;
  • EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK;
  • Close family members living overseas will still be able to join an EU citizen resident in the UK at any time after 2020, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected; and
  • Settled status will only be lost after 5 years’ absence from the UK.

No Deal

If we leave the EU on 29 March 2019 with no deal, the protections on offer to EU citizens will be diluted as follows. See the Department for Exiting the EU’s no-deal paper on citizens’ rights published on 6 December 2018 for further detail:

  • The Settlement Scheme will only apply to EU citizens who arrive before 29 March 2019 rather than as currently planned for EU citizens arriving up to the end of 2020.
  • There will be a shorter deadline for applications, of 31 December 2020, rather than 30 June 2021.
  • There will be no right of appeal to an immigration judge to challenge a refusal of settlement under the scheme.
  • There would be a cut-off point of 29 March 2022 for family members of EU citizens with settled status to join them in the UK.

There is so far no clarity on the status of EU nationals arriving in the UK between 30 March 2019 and 1 January 2021 in the event of no-deal.

On the plus side in a no-deal scenario, the Home Office says that the Settlement Scheme would still be generous and user-friendly, with case-workers “looking to grant status, not for reasons to refuse”. The Home Office are not always known for being generous and user friendly so this would be a welcome development.

Please note that if you are an EU national and have already been living in the UK for several years, you may already have acquired a permanent or other right of residence under existing EU regulations. Given that the UK is still for the moment a full member of the EU and depending on your personal situation, it might be a good idea to regularise your situation now to ensure minimal disruption over the next few years.

About the Author

Alice Boyle is a solicitor with extensive experience in all areas of immigration law. She can assist both corporate and individual clients with any immigration, nationality or asylum matter and possesses a sound understanding of Tier 1 Investors, Tier 1 Entrepreneurs and Tier 2 matters. Alice has substantial experience of challenging UK Home Office decisions, regularly representing clients in appeals at both the First-Tier and Upper Tribunal and also by way of Judicial Review applications in both the Upper Tribunal and UK High Court.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

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