In October, I wrote about the threat of a “hard” Brexit looming large at Halloween. The deadline for Brexit has since been pushed back — for a second time — to the end of January 2020, and UK Prime Minister Boris Johnson called an election.
The Dec. 12 election proved a resounding win for the Conservatives. Before the election, the Conservative party had just 298 seats out of the 643 voting membership (650 in total but the seven members of the Northern Irish Sinn Fein delegation do not vote in Parliament). With no overall majority, Brexit, and the rest of their legislative agenda could not move forward. The election was a gamble that paid off, as the Conservatives now have 365 seats and a majority of 80.
Here’s how the result affects the workforce solutions ecosystem.
The withdrawal agreement bill is the legislation that will enable Brexit to happen and the government plans to start the process of reviewing the bill in Parliament before Christmas. The revised Withdrawal Agreement and Political Declaration agreed with the EU on Oct. 17 is likely to be approved as the European Union (Withdrawal Agreement) Bill 2019-20.
The UK leaving the EU with a deal in terms of the new Withdrawal Agreement would mean there is a transition period, between the date of the UK’s exit from the EU and the entry into force of new, yet-to-be-negotiated, UK-EU partnership arrangements. The transition period will run until the end of December 2020, subject to an extension being agreed (by July 1, 2020) for up to two years to December 2022, which has already been ruled out by Prime Minister Johnson.
During the transition period, the UK and EU will have to negotiate the terms of their future relationship, which will include: trade arrangements for goods and services, data protection, travel arrangements for work and tourism, transport, energy, security, foreign policy, intellectual property and dispute resolution.
In the short term, nothing will change. The UK will continue to apply EU law during the transition period, with a few exceptions, as if it were a member state. But the UK will have no institutional representation and no role in decision-making. The EU institutions, including the Court of Justice of the EU, and other bodies, will continue to exercise their powers under EU law in relation to the UK.
Immigration in the Transition Period
Free movement will continue until the end of the transition period enabling EU and UK nationals to move between the UK and the 27 EU member states as is currently permitted by EU law. EU citizens living in the UK before the end of the transition period, and vice versa, will have permanent residence rights under the Withdrawal Agreement, subject to certain requirements. In the UK, these take the form of registration with the EU Settlement Scheme.
The EU Settlement Scheme enables citizens within the European Economic Area, or EEA (which includes all EU member states as well as Iceland, Liechtenstein and Norway nationals), and their families resident in the UK before Dec. 31, 2020, to apply for immigration status to preserve their existing right to continue to live and work in the UK after Brexit. The scheme is free, and the deadline for applying is June 30, 2021.
Successful applicants are given either settled or pre-settled status depending on when they arrived and how long they have been in the UK, giving them up to five years to continue living and working in the UK.
Meanwhile, Irish citizens’ rights are unaffected by these new arrangements as the UK, and Irish governments have made firm commitments to protecting existing Common Travel Area arrangements, including the associated rights of British and Irish citizens in the other state. Irish citizens can continue to come to the UK to live and work as now.
On the occupational front, there have been some recent changes to the immigration rules to allow visas for certain roles and occupations that are in short supply. Following a recommendation from the Migration Advisory Committee, or MAC, in its review of the Shortage Occupation list, the Home Secretary recently announced the introduction of a so-called “vindaloo visa,” which came into effect from Oct. 6, 2019, and has enabled some restaurants providing a takeaway service to sponsor visas for non-EEA national chefs.
The UK Home Office will also launch a new fast-track immigration offer for selected individuals with skills in science, technology, engineering and mathematics subjects, building on the existing Tier 1 Exceptional Talent visa route.
Immigration From 2021
The government has already announced that there will no longer be one immigration system for non-Europeans, and another for EU citizens. The future system will apply in the same way to all nationalities – EU and non-EU citizens alike — except where there are objective grounds to differentiate. This could, for example, be in the context of a trade agreement, or on the basis of risk.
Under a pure points-based system, it would be possible for someone to come to the UK without a guaranteed job, if they met the necessary points criteria. This is in contrast with an employer-led approach, whereby migrants must be sponsored by an employer for a work visa to perform a specific job. A points-based system should allow for a more liberal and flexible immigration system provided the criteria for points are sufficiently broad.
The Immigration White Paper had proposed a “transitional route” whereby workers of all skill levels, from certain as-yet undefined “low-risk” countries, would be permitted to enter the UK for 12 months. This was designed to aid sectors that currently have a reliance on an EU workforce, such as social care and agriculture. The scheme was to remain under review, but it was proposed there would be no cap on numbers, and as such would allow an unspecified number of low skilled workers to come to the UK on a temporary basis.
It remains to be seen whether this proposal will be carried forward as Boris Johnson has called on businesses to end their reliance on low-skilled labor from overseas.
Under the current system for non-EEA nationals, to be eligible for a Tier 2 (general worker) visa, migrants “usually need to be paid at least £30,000 per year or the ‘appropriate rate’ for the job offered – whichever is higher.” The MAC recommended that the existing £30,000 salary threshold be retained for Tier 2 visas under the future immigration system, meaning both non-EEA and EEA migrants would be subject to the £30,000 salary requirement.
This salary cap has attracted criticism as being arbitrary and too low and, in any event, will be subject to consultation before becoming law.
Parliament has a busy few months ahead and by this time next year, we should have a much clearer picture of the direction of travel for Brexit and where the talent will come from in the future.