A leaked Executive Summary for EU citizens, has made a number of proposals to limit their working and residence rights following the UK’s exit from the EU in March 2019.
From this date, EU citizens will require to travel to the UK on a valid passport; National ID cards will no longer suffice as evidence.
For EU citizens wishing to enter the UK to work, the Home Office proposes to introduce a skills-led regime, in which employers and EU citizens will not have the free-reign to select which employees/employers they wish to work for. The Home Office looks to introduce the Resident Labour Market Test (RLMT) for EU citizens; as is the case for non-EU citizens entering the UK for work purposes. The RLMT generally means having to advertise a job vacancy throughout the UK to provide resident workers the chance to respond.
In addition, the job/skill level and pay rate will influence the length of permission to stay awarded by the UK Home Office; this could be low-skilled migrants being awarded maximum 2-years, whereas highly skilled occupations can be anything between 3-5 years. Therefore, a selective approach is being adopted by the Home Office dependant on the UK’s economic and social needs, thus cutting down the number of low skilled migrants entering the UK.
There is also an intent to only provide a route to settlement to individuals in highly skilled occupations and their dependents; consideration of ‘highly skilled’ will be on par to the current Points Based System (PBS) Tier 2 skills threshold and occupational categories for non-EU citizens; this at present is NQF Level 6 and PhD level roles.
The Migration Advisory Committee (MAC) have been charged with examining “the overall role of migration in the wider economy and how the UK’s immigration system should be aligned with a modern industrial strategy.”
The MAC will study the “economic and social costs and benefits of EU migration to the UK economy”, its impact on competitiveness, and whether there would be benefits to focusing migration on high-skilled jobs. It is due to report back by September 2018 – just six months before Brexit.
Although the Government proposes to safeguard the position of EU Citizens following March 2019; it has also hinted at ‘ending the right to settle in Britain’ for EU nationals, and placing new restrictions on the rights to accompanying family members to the UK. The ‘New Status’ in the UK means that regardless as to when a EU national entered the UK, they will need to obtain permission from the Home Office to continue to remain. This will therefore incur further fees for applications, which the Home Office proposes will be set at a ‘reasonable level’ and those with Permanent Residence, will still be expected to obtain ‘Settled Status’ if they fail to submit an application to Naturalise as a British citizen prior to March 2019.
A new UK Legal Framework
An ‘Immigration Status’ under UK Law will be imposed; EU Citizens will no longer have automatic generic ‘rights’ to move to the UK. Instead, they will need to meet the Immigration Rules in place at the time, and apply to the Home Office; in addition, the Rules will differ depending on the individual’s purpose for travelling to the UK.
Paragraph 2.10 of the leaked Home Office publication states that in the future, all EU Citizens will enter the UK under the UK Legal Framework – again reference to abolishing the entire existence of the Court of Justice of the European Union (CJEU). Proposals to introduce the ‘deemed’ Leave to Enter (LTE) criteria have been put forward, which would allow an EU national to enter the UK for work, study or self-sufficiency for a period of 3-6months; however, thereafter if the EU national wishes to remain in the UK, they will be expected to make an application to the Home Office for further Leave to Remain (LTR). The ‘deemed’ LTE can be cancelled by a Border Force Officer at any-time, should the EU national’s character come into question. It is worth noting that the ‘deemed’ LTE category will not extend to non-EU family members of EU nationals; they will be expected to seek permission to enter the UK prior to travel. This is similar to the current procedures followed by non-EU family members applying for a Family Permit.
Further to this; EU nationals who are in the UK as job-seekers will not be awarded residence status unless they can confirm they are self-sufficient persons of independent means.
In addition, following the removal of the CJEU, the routes under Zambrano and Surinder Singh will be abolished as the intention is to give the UK Courts the ability to set new precedents moving forward.
Employers will be expected to conduct ‘right to work checks’ evidenced via a valid Passport confirming EU nationality, or via a Home Office biometric immigration document. Failure by any EU citizen to comply with measures in place, by remaining in the UK longer than the unrestricted period allows, without a valid residence permit will be committing a criminal offence, which may lead to sanctions being applied against the employer and EU citizen; this could result to re-entry bans for the EU citizen and criminal investigations against an employer.
The House of Lords approach
GDP – Gross Domestic Product for the UK will be measured taking into account the GDP per head of existing residents; the House of Lords has also stated that ‘analysis should rather be on the effects of immigration on income per head of the resident population’. Therefore, EU nationals will be deemed valuable to the UK only if, they not only benefit themselves, but also, they ensure that existing residents are better off. As a rule, wherever possible, UK employers will be expected to meet their labour needs from the resident labour market – the UK Government wishes to build on the domestic skills to build a strong and competitive market. This will be through investing in training for the resident labour market, which in the last 20 years has declined.
When designing the future immigration policy for EU citizens, the UK proposes that it will be desirable to bring in highly skilled EU citizens and allow companies to attract global talent. Further provisions will be made for intra company transferee’s – however, currently this route does not lead to settlement for non-EU nationals, and the same can be expected for EU citizens. Currently, non-EU nationals must be sponsored by a UK employer to enter the UK and work for their particular business; this may be the future for EU citizens; sponsorship from a UK employer allowing them to work in the UK; therefore, taking away the flexibility of switching from one employer to another without having a sponsorship in place.
10 Key ‘Post Brexit’ Points
- Phased Withdrawal: there will be three stages to the transformation of the UK’s immigration policies; the initial phase, before Brexit, will introduce the immigration bill, this will be followed by the implementation phase ‘of at least two years’ and the final phase will put in place the new tougher rules.
- Britain first: this language confirms that the new immigration policies will be much more UK-focused.
- Passports and border controls: Proposal suggest that in the future, EU nationals will need to show their valid passport when coming to the UK; National ID cards will no longer suffice.
- Free-movement during phase 2 and biometric identification: The UK ‘will end free movement in its current form’ after the UK leaves the EU. During phase 2 (the implementation phase), people who wish to reside here for an extended period will have to provide proof of citizenship either with a passport ‘or a Home Office biometric immigration document’; also known as a Biometric Resident Permit.
- Permits, fingerprints – and cost: When applying for a resident permit for the UK, certain documents and fingerprints will need to be provided.
- Permits for most workers will only last for up to two years: Highly skilled occupations and those with ‘real expertise’ will be offered permits for longer than 3 years during phase 3 (when the rules are made tougher).
- Restricting the rights of EU family members to enter and remain in the UK: Again, the Home Office seeks to put in place a tougher regime which restricts residency to ‘partners, minor children under the age of 18 and adult dependent relatives’; therefore, extended family members will no longer qualify as family members under the new tougher laws.
- Income requirements for some EU nationals: Although precise details have been withheld, a new income threshold for some EU citizens before being permitted to reside in the UK.
- British workers prioritised: The new rules will set out to make it harder for employers to employ labour from EU countries, by reducing the opportunity for workers to settle long-term in the UK and to prevent family members from joining them in the UK – especially low-skilled workers; thus, forcing UK employers to think twice before employing from the EU.
- Refusing Entry: this will strengthen the UK’s ability to refuse entry to EU citizens with a criminal record, or those considered a threat to the UK – the vetting process may be aided by an online screening procedure.
Migrate UK recommendations
The UK government will be reluctant to verify or comment on any of the leaked information above. Current Home Office policy dictates that nothing has changed and that EU ‘qualified persons’ residing in the UK continue to benefit from free movement rights. However, the leaked document clearly outlines the vision for change so it is important that EU citizens and family members check their eligibility for both Permanent Residency AND British Naturalisation applications. A valid and qualifying British Naturalisation application must be submitted before the official EU exit date in order to avoid being subject to an ‘Immigration Status’ under proposed UK law.
For employers, it is important to identify their EU citizen workers and where possible ascertain when they entered the UK and became a ‘qualified person’ (employed, self-employed, work seeker, student, self-sufficient). This will enable an employer to effectively map out the future of their employees as new immigration legislation is announced.
For family members of EU citizens; employers will need to check the resident permits of a family member of EU national if they wish to work in the UK. Therefore, this will not only effect the EU citizen working in the UK, it will also affect their EU or non-EU family member.
However, employers must remember that family members of low-skilled EU citizens will be less likely to be permitted entry into the UK, therefore, acting as a deterrent for EU citizens on low skilled jobs to enter the UK initially; as oppose to highly-skilled workers whom will have been awarded a residence permit between 3-5 years.