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Ten ways that Brexit will impact immigration

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Sources in the European Union are confident that a deal between the UK and the EU27 is soon to be signed. The EU27 member states will meet at a working dinner on 17 October 2018 to discuss progress with the talks with the UK, before looking to finalise a deal at an extraordinary summit in November. 

Following the recent Conservative conference, which included key speeches from the Prime Minister and the Home Secretary, we look at what we have learned to date about immigration in the UK following the UK's departure from the EU:

1.    EU nationals in the UK prior to 31 December 2020 need to make an application for a new immigration status:

The Home Office is currently trialling the Beta stage of the application which is due to be launched by next March. We expect the application to be very light touch and to only require minimal information from applications to confirm their residence in the UK and lack of criminal convictions.  

Those who have been in the UK for 5 years by the end of 31 December 2020, will be granted indefinite leave to remain. Those who will have been in the UK for less than 5 years by that date will be granted pre-settled status for five years. Once they have achieved five years’ residence they can then make an application for indefinite leave to remain.

All EU nationals and their family members will need to make one of these applications in order to remain lawfully resident in the UK.

2.    Third Country Nationals who are in unmarried partnerships with EU nationals will need to first make an application for an EEA Residence Card:

Where an EU national intends to make a settled or pre-settled status application with his or her unmarried partner, his or her partner will need to first make an application for an EEA Residence Card in order to submit the card with the settled or pre-settled status application. These applications have been taking up to six months to be processed and so need to be factored in prior to applying for settled or pre-settled status before the deadline for applications: 30 June 2021.

3.    EU nationals arriving after 29 March 2019 will need to register:

EU27 nationals arriving in the UK after 29 March 2019 will be subject to a registration process, the details of which are still to be published.

4.    Free movement from the EU into the UK will continue until 31 December 2020:

The current rules that we have allowing EU27 nationals to enter and remain in the UK will continue during  an ‘implementation' period which will run up to 31 December 2020. Until this time, EU27 nationals and their third national family members will continue to have a right to enter the UK and remain for 3 months and remain beyond that time as long as they are either employed, self-employed, self-sufficient, students or looking for work.

We assume that reciprocal arrangements will apply to UK nationals entering any of the EU27 member states.

5.    From 1 January 2021, EU nationals are unlikely to have preferential treatment under new immigration rules:

The Home Secretary and Prime Minister have both confirmed support for the Migration Advisory Committee’s (MAC) findings that a new immigration system will not benefit from a continuation of free movement, or preferential treatment of EU27 nationals. This means that those looking to come to the UK from the EU are likely to be subject to the immigration routes that currently exist for those from outside the EU. This would mean Tier 2 for skilled workers, Tier 1 (Entrepreneur) for those wishing to start a business in the UK and Tier 4 for those wishing to study in the UK.

6.    Tier 2 (General) will be adjusted in order to accommodate workers from the EU:

The MAC has recommended abolishing the quota which currently applies to Tier 2 (General) restricted Certificates of Sponsorship. It also suggests that the skills threshold for Tier 2 should be lowered from NQF level 6 to level 3.

The Resident Labour Market Test as it stands is also set for review with the Home Secretary suggesting in this conference speech that the focus should be on using salary thresholds to ensure migrants are not competing for jobs that could otherwise be filled in the UK. This follows from the MAC’s findings that the Resident Labour Market Test was a very subjective test and perhaps not the best approach to making sure settled workers are not being passed up for UK jobs.

We await more concrete information on new immigration rules following a White Paper due either this month or next month, and then an immigration bill in the New Year. 

7.    A new temporary visa route may be opened for those from the EU27 aged between 18-30

The MAC also advised the merits of a visa which is the same as the Tier 5 (Youth Mobility) visa, which allows young people mostly from Australia, New Zealand and Canada to live in the UK for two years. The same conditions could be applied to young people from the EU.

8.    Business visitors from the EU may receive concessions:

The Prime Minister and the Home Secretary have both presented the idea of an ESTA-type system where visitors to the UK can be screened quickly prior to travelling to the UK to allow swift entry to the UK at the border. The system is being aimed at 'trusted' nations, which would presumably include part, if not all, of the EU27. The Prime Minister also spoke of 'mobility' concessions for EU workers, suggesting a relaxation of the visit visa system for workers from the EU.

9.    There will be no sector-based visa types other than for agriculture:

The agriculture sector has relied heavily on EU workers and so the government will maintain a temporary visa category for seasonal workers in this sector. However, despite requests from other industry areas which are also reliant on EU workers, there are no plans for a similar visa category for any other industry sector.

10.    Nothing is agreed until everything is agreed:

This continues to be the theme. We will only truly know the immigration rules post-Brexit for certain once every part of the Brexit deal has been agreed. There is potential for information released during negotiations to in fact be part of the negotiations, and so it may be the case that immigration is not so restrictive for the EU27. We will hopefully know for certain by the end of November. 

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