Tackling post-Brexit immigration uncertainty

  •    Author: Mike Jasfer

Since taking over from Theresa May, new PM Boris Johnson has focused heavily on the issue of immigration – but the Government White Paper proposals for a post-Brexit immigration scheme, published last December, did little to clarify the situation.
There is growing uncertainty surrounding the future of EEA workers in the UK, and although the removal of a cap on the number of skilled workers entering the UK is welcomed, an adherence to minimum salary thresholds continues to cause a problem.
Likely impact on UK businesses
The proposals are likely to increase net migration, but according to critics this could put the UK at risk of becoming a low-wage, low-skill economy, given the lowering of skills thresholds and mooted special schemes for low-skilled and low-paid work.
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, and 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 will offer 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.
If the UK was to leave the EU with a deal, then EEA nationals will retain their current rights until 30th June 2021, whilst those who have lived here for less than five years can apply for pre-settled status. Less certain is the fate of would-be EEA migrants after a no-deal Brexit – the latest announcements from Government imply new conditions attached to any grace period, and access to the EU Settlement Scheme may be blocked.
Employing outside the EEA
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 considered creating a revised system, essentially built on the 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 PM, envisages rebalancing 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 has certain set advertising and benchmarking requirements before a migrant applicant can be sponsored.
What does the future hold?
With the deadline for Brexit fast approaching, there is still a lot of uncertainty surrounding immigration laws.
The 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 that are reliant on a readily available, low-cost workforce, it is important to take expert advice and start developing a strategy to mitigate the risks associated with Brexit-related changes to immigration.
Matthew Davies heads the Immigration team at law firm Wright Hassall, a top-ranked firm of solicitors based in Warwickshire.

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