Overview

The UK government is subject to two opposing forces. On the one hand, is the fact that many of the voters in favour Brexit were concerned about immigration. On the other hand, EU migrant labour is critical in a number of sectors ranging from hospitality farming and social care to certain high skilled sectors.

In the event of a hard Brexit, the worst-case scenario for considering non-UK non-Irish employment is the existing Visa rules. By its announcement of September 9^th, 2019, for cover a hard Brexit on 31^st January 2020, the UK has made unilateral concessions granting enhanced rights to EU 26 nationals in respect of visiting and working in the United Kingdom at least until the end of 2020.

The Common Travel Area is dealt with separately. It would appear to be sufficiently wide to allow Irish nationals to work in the UK on an ongoing basis, without being subject to UK immigration control.

The UK 2018 White Paper on immigration proposed in broad terms that EU 26 nationals would be treated in the same way and subject to the same regime as third-country nationals. A White Paper is a statement of government policy and is not the law. However, it suggested a restrictive unfavourable approach to EU26 immigration in the UK.

The UK government of Theresa May which published the 2018 White Paper has been replaced by the UK government of Boris Johnson. The apparently likely re-election of Boris Johnson may reinforce that restrictive approach to immigration. Nonetheless, it is entirely possible that an even in a hard Brexit or soft Brexit, a somewhat more liberal scheme might be afforded to EU 26 nationals.

The one ratified EU UK withdrawal agreement contains general language about the intended approach to immigration. The UK government is undertaking a further review of immigration law and is due to publish the results of the study in the next number of weeks.

Hard Brexit Mitigation 9 September 2019

The Conservative UK government announced a considerable number of mitigation measures on 9 September 2019 in the event of a hard Brexit on 31 January 2020. They include, in particular important mitigation areas in the area of immigration. The risk became subsequently much less after the withdrawal agreement between the EU, and the UK was agreed in October 2019. The same provision might apply again in the case of no deal exit or under an EU UK agreement in 2021.

The announcement of 9 September 2019 focuses principally on a new European temporary leave to remain for EU migrants. However, it also indicates that for most purposes EU citizens would be permitted to enter the UK until at least the end of 2020 on the same terms as at present the event of a hard Brexit on 31 January 2020.

It indicates that only EU citizens who moved to the UK after Brexit and who do not apply for the new European temporary leave to remain will need to leave the UK by 31 December 2020 unless they have applied for and obtained UK immigration status under the new immigration system or obtain settled status as existing pre-Brexit EU migrants.

The UK  no deal publication indicates that much of the free movement framework will remain in place until Parliament passes legislation to repeal it. It indicates the UK government would remove the blue EU customs channel requiring all travellers to choose either green or red channel for customs (goods) purposes.

However, it indicates that the time being, border crossing arrangements would remain unchanged. EU citizens may enter the UK as they do now use their passport or national identity card. They would be able to use the E gates if they are travelling on a biometric passport and they will not face routine intentions testing.

EU citizens will be subject to security checks and face tougher UK rules on criminality and conduct committed after Brexit. The use of EEA national identity cards for travel will be phased out during 2020. More details are to follow in due course.

New Temporary Leave to Remain

EU citizens who move to the UK for the first time after Brexit will be able to live and work in the usual way (as they do now) until 31 December 2020. If they wish to stay beyond 2020, they will need to apply for immigration permission.

One option for them is to apply for a new, voluntary 36-month temporary permission, called European Temporary Leave to Remain (Euro TLR) upon arrival into the UK. The application process is likely to be similar to that under the EU Settlement Scheme.

Alternatively, any EU citizens moving to the UK after Brexit will need to apply for an immigration status, as do other non-EU citizens. The government has indicated it will introduce a new skills-based immigration system which will come into being from 1 January 2021.

If the UK leaves the EU without a deal, when checking an applicant’s right to work, employers will not need to distinguish between EEA and Swiss nationals who moved to the UK before or after Brexit and that will remain the case until 31 December 2020. Some changes will be made to the guidance on right to work checks to accommodate the new Euro TLR scheme.

 Until January 2021, EEA and Swiss nationals will be able to prove their right to work by using their:

•  passport or national identity card if they’re an EEA or Swiss citizen;
• digital status under the EU settlement scheme or Euro TLR scheme via the Home Office’s online right to work checking service; or
• biometric residence card if they’re a non-EEA or Swiss citizen family member.

 From 2021 employers will be under an obligation to check that all EEA and Swiss new recruits have a valid UK immigration status: a valid passport or national identity card will not be sufficient

 If the UK leaves the EU without a deal, an Immigration Bill drafted under Theresa May’s government, would enable the Home Office to bring free movement to an end from the UK’s exit date. To avoid a deeply undesirable immigration ‘cliff-edge’ until a new immigration system could be put in place, under current plans EU, EEA and Swiss citizens and their family members arriving in the UK after exit date but on or before 31 December 2020 would be subject to temporary transitional arrangements. Under these arrangements, those coming to the UK for short visits (work-related or otherwise) would be able to enter the UK as they can now and stay for up to three months for each entry.

 EU, EEA and Swiss citizens who wish to stay for longer would need to apply to the Home Office for EU temporary leave to remain within three months of arrival, giving 36 months’ permission to live, work and study in the UK. Those who wish to stay beyond this period would then need to apply under the UK’s future immigration system which is expected to be introduced from January 2021 (though also see further comment below).

 The Home Office has also advised affected UK employers that there will be no need to check retrospectively the status of EU, EEA or Swiss employees who began employment before 1 January 2021 nor to differentiate between those who arrived before or after the UK leaves the EU, in the event of no deal.

Hard Brexit Possibilities if Mitigation Withdrawn

If somehow the mitigation measures of September 2019 were not to be offered again, for a 2021 exit, then there may be a period during which the most restrictive provisions would be applied by each of the EU26 and UK to nationals of the other. In a worst-case scenario this might develop into some kind of trade war which might impact upon the likely migration rules but will also impact severely on the economy.

An alternative scenario is that after some short time, the EU and UK would come to some accommodation or mini agreements to mitigate the worst effects of a hard Brexit. Generally, in this context, it is difficult to predict what mitigations might apply in respect of immigration. On the one hand, EU 26 immigration was perceived to be a major part of Brexit. On the other hand, EU 26 migration, particularly in specialist skills is absolutely crucial to the UK economy. It is also critical in a whole host of other services sectors.

It is assumed that none of a trader’s existing employees would qualify for the UK EU settlement scheme. This requires a certain period of residence in the UK which would not seem to be available or applicable.

Soft Brexit

It is very difficult to predict what immigration law or controls might be applied to EU 26 nationals in a soft Brexit. In a soft Brexit (or eventually in a hard Brexit)  it is assumed that there would be some liberalisation beyond the general third country immigration rules applied by the UK to non-EU countries at present. Part of the reason that the UK third country rules are restrictive is the fact of unrestricted labour from EU/EEA countries.

It is possible that an EU UK trade agreement might involve some favourable or streamlined employment and working rights for EU workers in the United Kingdom. Given the red lines over immigration, this is not likely to be equivalent to full freedom of movement that has existed to date.

It is possible that an EU UK trade agreement might involve some favourable or streamlined employment and working rights for EU workers in the United Kingdom. Given the red lines over immigration, this is not likely to be equivalent to full freedom of movement that has existed to date.

Immigration White Paper

The UK December 2018 White Paper on immigration contemplates that all non-Irish non-UK nationals will be subject to a single worldwide immigration regime that would apply to workers and contractors from all countries.

The White Paper indicates the employer should not be using migrant labour to put downward pressure on wages where there is already a ready supply of UK labour. However, employers of skilled migrants will no longer be required to carry out a resident labour market test as a condition of sponsoring a worker.

The new system is to be accessible to a large number of businesses, particularly smaller enterprises that have previously been able to hire migrant labour from the EU without needing to engage with the existing sponsorship requirements. The White Paper, therefore, indicates that the UK will make the system straightforward and light-touch as possible and low cost to employers.

The EU Canada agreement

The EU Canada free trade agreement is often held up as a model for the future relationship between the UK and the EU by some influential members of the current UK government. It does not provide for free movement of persons in any sense.

There are provisions for ‘Temporary Entry’ of persons to facilitate the activities of European and Canadian professionals and investors. Where the investment is liberalised, inter-corporate transferees are guaranteed access. Canada and EU undertake to allow companies to post their transferees for up to three years regardless of the sector of activity. They may be accompanied by their spouse and families when temporarily assigned to subsidiaries abroad.

Natural persons, who provide a service as ‘contractual service suppliers’ or ‘independent professionals may stay are guaranteed the right to stay in the other party for a period of 12 months instead of six months that had applied.

WTO GATS

The WTO General Agreement on Trade in Services does not confer any general right to free movement of persons. So-called mode 4 freedoms refer to persons such as employees of a business in the home company, travelling to provide services to a customer in the host state.

Mode 4 freedoms encompass persons providing services in the services sector on a temporary or non-permanent basis in another state. However, what is temporary can be interpreted by WTO members as they wish. They may set their own definitions of categories. In effect, the UK visitor’s business rules implement this in a particular way.

Existing EU FTAs, where the focus is exclusively on temporary provision, do not come close to achieving the existing EU level of mobility. In theory, short projects involving mode 4 may be undertaken under the EU’s FTAs. Short-term business visitors to the EU can stay up to 90 days within any six-month period, and intracorporate transferees can stay up to three years, with possible extension at the discretion of member-states.

For contractual services suppliers and independent professionals, the rules vary depending on the sector, the employment status of the person providing the services, and the reason for their visit. Member-states retain a lot of control, with many refusing to bind themselves to big immigration commitments. And many put extra conditions on any commitments the EU makes in its FTAs.

Broadly speaking, a contractual services supplier can enter the EU to deliver a contract that does not exceed 12 months, subject to conditions. These conditions stipulate that: the person must have a university degree or equivalent qualification alongside any professional qualifications required to supply the service; an independent professional can enter the EU to deliver a contract that does not exceed 12 months; they must have at least six years’ of professional experience in the sector, a university degree and relevant professional qualifications.

The EU does not make mode 4 commitments for all sectors or sub-sectors in its FTAs. In the case of financial services and insurance, mode 4 provisions exist only for advisory and consulting services. Some countries make contract offers to non-EEA financial advisory firms and independent professionals subject to an economic needs test, such as being able to demonstrate they are essential to the working of an organisation.

The same is true for contractual legal services suppliers and independent professionals where some countries make contract offers subject to an economic needs test. For accounting and book-keeping services, the EU does not make any mode 4 commitments vis-à-vis independent professionals.

The rights do not apply to measures affecting individual seeking access to the employment market of a member state requirements regarding citizenship residence or employment on a permanent basis. States are free to regulate the entry and stay of individuals in their territory provided that the measures are not applied in such a manner as to nullify or impair the benefits incurred in any member under the terms of a specific commitment.

All of this falls a long way short of what EU law currently provides and delivers.

Some Possible Templates in Schengen EU Rules

As part of the common Schengen rules (of which the UK and Ireland are not members), there is an EU wide directive, the so-called blue card directive on highly qualified workers contemplates third-country nationals, i.e. non-EU with a job offer for highly qualified work (work requiring higher education qualifications or where permitted by national law, five years equivalent professional experience) in an EU state, with sickness insurance and is not considered a threat to public policy security.

Such persons may be issued with an EU blue card equivalent to a US green card. States are not required to issue a blue card for a vacancy which could be filled by a member of the national or EU workforce or where the volume of admissions of third-country nationals is too high, or the job is in the sector suffering from a lack of qualified workers in the country of origin.

Another measure in the Schengen area is the intercorporate transfer directive allowing the transfer of skilled workers for a maximum of three years.

It is important to note that these schemes that apply in the Schengen area are possible templates that might be used in the UK. It is no way implies that such a scheme will be put in place.

Other Options

A possible model just short of single market membership is the relationship with Switzerland. Switzerland has a relationship based on over 120 sectoral agreements covering various areas. It is a member of the single market for a lot of purposes but not for other purposes including for example financial services. It contributes to the EU budget in return for a certain level of access to the single market. It covers the free movement of persons.

Switzerland voted in favour 2014 and an anti-immigration initiative which is called for the introduction of annual quotas on immigration from the EU and to give preference to Swiss employees in employment matters. This would breach the bilateral agreement on the free movement of persons. The EU rejected renegotiating the rules. If Switzerland was to implement the rules, it would have likely denied it access to a range of other EU market benefits

Another possible model suggested the so-called fair movement rather than free movement. This might allow for highly skilled migrants to have considerable free movement subject to light-touch registration and work permit scheme. It might require lower-skilled migrants to be subject to a more intensive Visa based scheme.

Lapsed 2016 Agreement

Another possibility might be to reflect the principles in the so-called 2016 new settlement decision. This was negotiated by David Cameron with a view to preventing the Brexit. It has now lapsed. It contemplated free movement being limited to workers who had a job offer. It also contemplated an emergency brake on migration. It is recognised that it was legitimate to take different levels of remuneration between member states and different levels remuneration into account both at EU and national level without creating unjustified direct or indirect discrimination,

If overriding reasons of public interest make it necessary, free movement of workers may be restricted by measures proportionate to the legitimate aim pursued. Encouraging retirement, reducing unemployment, protecting vulnerable workers and averting the risk of seriously undermining the sustainability of social security systems are reasons of public interest recognised the jurisprudence of the European Court.

This so-called emergency brake is much more significant than was acknowledged held at the time.

Future Relationship Declaration October 2019

The future relationship declaration relationship made between the EU and UK in October 2019, at the same time as the unapproved withdrawal agreement is a non-binding declaration which is intended to form the basis for the negotiation of the future EU UK relationship during the transition period which is the last to the end of 2020 and possibly to the end of 2021 or 2022 if so extended. It does not contain a lot on free movement given its political sensitivity, in particular before an election.

It contains the following text in relation to the mobility of persons

IX. MOBILITY

48. Noting that the United Kingdom has decided that the principle of free movement of persons between the Union and the United Kingdom will no longer apply, the Parties should establish mobility arrangements, as set out below.
49. The mobility arrangements will be based on non-discrimination between the Union’s Member States and full reciprocity.
50. In this context, the Parties aim to provide, through their domestic laws, for visa-free travel for short-term visits.
51. The Parties agree to consider conditions for entry and stay for purposes such as research, study, training and youth exchanges.
52. The Parties also agree to consider addressing social security coordination in the light of future movement of persons.
53. In line with their applicable laws, the Parties will explore the possibility to facilitate the crossing of their respective borders for legitimate travel.
54. Any provisions will be without prejudice to the Common Travel Area (CTA) arrangements as they apply between the United Kingdom and Ireland.
55. To support mobility, the Parties confirm their commitment to the effective application of the existing international family law instruments to which they are parties. The Union notes the United Kingdom’s intention to accede to the 2007 Hague Maintenance Convention to which it is currently bound through its Union membership.
56. The Parties will explore options for judicial cooperation in matrimonial, parental responsibility and other related matters.
57. These arrangements would be in addition to commitments on temporary entry and stay of natural persons for business purposes in defined areas as referred to in Section III of this Part. Those commitments should not be nullified by the right of either Party to apply their respective laws, regulations and requirements regarding entry, stay and work.

Boris Johnson Government Immigration Study

Notwithstanding the White Paper published under Theresa May’s government, Boris Johnson has said he wishes to look again at ideas for a post-January 2021 immigration system.

The Home Secretary, Priti Patel, has asked the Migration Advisory Committee (MAC) “to review how an Australian-style points-based (PBS) immigration system could be introduced in Britain to strengthen the UK labour market.” The MAC has been asked to report by January 2020. This is in addition to the MAC’s existing commission to review salary thresholds. It is a very tight timetable, and the MAC has already launched a call for evidence.

The MAC will consider “how points could be awarded to prospective migrants for different attributes, such as educational qualifications, language proficiency, work experience and willingness to work in areas or sectors with a shortage of workers. The salary thresholds will also be considered in the context of this immigration system.”