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Sunday, May 19, 2024

Brexit migration muddle

As a Christmas general election looms large, Matthew Davies dissects the Government’s latest immigration proposals which have heaped further uncertainty on UK businesses

Immigration is a favoured subject of Prime Minister Boris Johnson, but existing Government White Paper proposals for a post-Brexit immigration scheme, published last December, did little to clarify the situation for UK businesses. Meanwhile, uncertainty and frustration persist over the future of EEA workers in the UK.
The proposed removal of a cap on the number of skilled workers coming into the UK is welcomed, but a harder line on minimum salary thresholds is a problem, particularly for the manufacturing sector.

Impacting UK businesses?
The proposals are likely to increase net migration, but critics say the UK already risks becoming a low-wage, low-skill economy, and the lowering of skills thresholds and mooted special schemes for low-skilled and low-paid work will not help. The uncertainty surrounding the post-Brexit situation is driving more businesses to look beyond the European Economic Area (EEA) for the talented workers they need, but this requires them to engage with a complex application process for sponsor licensing. Navigating the Home Office rules for eligibility and ensuring an application is made correctly can be daunting, as issues or errors can result in refusals, penalties and claims from employees. Time is of the essence and organisations new to the process must understand and factor in the likelihood of delays, while ambitious businesses should prepare for this brave new world.

Working in the UK
Unfettered access to the UK labour market for EEA and Swiss Nationals will end due to Brexit; those EEA workers currently employed by UK businesses may apply to convert EU law rights into UK law rights.
Known as the EU Settlement Scheme, it offers pre-settled status for newer workers and settled status for those who have been living in the UK for five years. The Government has given a unilateral commitment to make this possible even in the event of a ‘no deal’ Brexit, with assurances given that currently UK-based EEA nationals will have ample time to secure their future right to live and work in the UK.
Most early applicants experienced a trouble-free application process, but a growing number find their applications mired in delay as the Home Office struggles to process more than two million.
If the UK leaves the EU with a deal, then EEA nationals will retain their current rights until 30 June 2021, whilst those who have lived here for less than 5 years can apply for pre-settled status.
Less certain is the fate of would-be EEA migrants after a no-deal Brexit – although there is a back up in the form of 36 months’ temporary permission, latest announcements from Government imply additional conditions may be attached to any grace period from early 2020, and access to the EU Settlement Scheme may be blocked.

Employing non-EEA Migrants
For the time being, the Points Based System for non-EEA nationals will continue in its present format, whereby UK employers wishing to sponsor workers must be licensed and follow complex criteria.
The Government, perhaps mindful that its pro-immigration policies will conflict with a pro-Brexit stance, has proposed a revised system, essentially built on our existing points-based “Australian style” structure (which really bears little resemblance to the Australian system).
The Government White Paper, since amplified by announcements from the Prime Minister, envisages re-balancing the system in 2021 to include EEA nationals, with only limited preferential status for post-transition arrivals.
However, this new system will be weighted towards ‘in-demand skills’, while scrapping the Residential Labour Market test which imposes set advertising and benchmarking requirements before a migrant applicant can be sponsored.

What does the future hold?
A general election and the fast-approaching Brexit deadline means that immigration law and policy may be subject to unexpected change.
Government has openly acknowledged that the public’s wish to reduce immigration was the largest single driver of the vote to leave, but over the years, UK business has become dependent on skilled workers coming to the UK. For those organisations reliant on a readily available, low-cost workforce, it’s important to take expert advice and start developing a strategy to mitigate the risks associated with Brexit-related changes to immigration.

Matthew Davies

Matthew heads the Immigration team at law firm Wright Hassall and is an expert in navigating the complexities of the UK’s immigration rules to minimise delays, costs and risks in hiring overseas talent. For further dertails, visit: www.wrighthassall.co.uk

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