Immigration update: Post-Brexit plans and changes to immigration rules

Key changes include the post-Brexit immigration regime, and operational changes that will impact on your everyday decision making.

More than two years after the Brexit vote, immigration law is still firmly in the spotlight.

This month we round up a number of key changes; from insights into the post-Brexit immigration regime that might help shape your strategy, to operational changes to the immigration rules that will impact on your everyday decision making.

Brexit Update: Further details emerge of post-Brexit immigration regime

On 21 June 2018, the Government announced long-awaited further details about its proposals for EU nationals already in the UK who wish to stay after Brexit (set out in a lengthy and detailed statement of intent). Key details of the new regime which is proposed are as follows:

  • An ‘implementation period’ will run from the date of the UK’s exit from the EU (29 March 2019) to 31 December 2020. The rights of EU citizens and their families living in the UK will not change during this time.
  • EU citizens living in the UK on 31 December 2020 will have until 30 June 2021 (six months from the end of the implementation period) to make an application for ‘settled status’ under the new EU settlement scheme. However, these individuals may not need to wait until Brexit to apply, as the process will be phased in later this year (and will be fully open by 31 March 2019).
  • Irish citizens and individuals with indefinite leave to remain in the UK will not need to apply for ‘settled status’. Individuals with indefinite leave to remain can exchange their documents for ‘settled status’ documents free of charge.
  • We know that many organisations are looking to support EU staff to apply to remain in the UK. Employers will therefore welcome Government assurances that the process is promised to be relatively straightforward (“three easy steps”) and relatively cheap (£65- “less than the price of a passport” - and £32.50 for children). However, some press comments are sceptical about whether this will be as straight forward as anticipated.
  • Applicants will need to prove their identity, show that they have lived in the UK for at least five years, and demonstrate that they have no serious criminal convictions. Applications will be entirely online.
  • Individuals who have not yet lived in the UK for five years will be granted ‘pre-settled status’ and be able to apply for ‘settled status’ once they reach this five year point. From April 2019, this second application will be free of charge.
  • A dated and signed letter from an employer confirming the duration of employment of an EU national will be valid evidence to support an individual’s application. The Home Office will directly check any employment and benefit records held by the Government.

The Home Office has promised to engage further with stakeholders, including employers, over the detailed design of the scheme before the new draft rules are laid before Parliament. However, the sooner HR teams start to familiarise themselves with the new processes and terminology set out in the ‘statement of intent’, the better equipped they will be to adapt when the changes finally kick in.

Brexit White Paper: Free movement going forward?

Separately, the Government’s Brexit White Paper published in mid-July sets out an intention to preserve free movement for skilled workers in some form even after the UK exits the EU.

The paper makes clear that there will be an end to free movement of people as we currently know it at the end of the transition period in December 2020, but proposes that businesses should still benefit from the mobility of ‘skilled’ staff between the UK and EU countries after Brexit. The paper expresses the hope that any future deal with the EU will “provide reciprocal arrangements consistent with the end of free movement” including measures that “support businesses to provide services and move their talented people”. The document also says the government is prepared to allow EU citizens to travel freely without a visa in the UK for tourism and temporary work and allow EU students to study in the UK. Obviously, the position set out in the UK white paper is subject to agreement by the EU and the detail of what free movement will look like post-Brexit, if it is preserved at all, may not become clear for some time.

Changes to the Immigration Rules

On 6 July 2018, the latest Statement of Changes to the Immigration Rules came into force, following a Government announcement on 15 June 2018. This introduced some important changes that employers should be aware of.

Changes to the Immigration Cap Rules for Employers

One of the most notable changes is to exclude doctors and nurses from the cap on skilled worker visas. The move is part of a long-term Government plan for the NHS and means that there is no restriction on the number of doctors and nurses who can be employed by the NHS through the Tier 2 visa route provided that they meet the requirements of the rules. As the NHS accounts for around 40% of all Tier 2 places, this frees up hundreds of places a month for other highly skilled roles. This is a positive step, as the limit has been oversubscribed in each month since December 2017. This had effectively pushed up the minimum pay needed for sponsorship for many jobs as roles are ranked according to pay and other factors where the immigration cap is full. A separate Home Office press release provides more information on the decision to exempt doctors and nurses from the Tier 2 visa cap.

Continuity of leave

Changes have been made to bring entry clearance provisions for applications made outside of the UK into line with the in-country provisions for the purpose of preserving continuity of leave in some cases. An applicant whose application has been refused within the UK may now make an application from outside within 14 days of the previous refusal without affecting continuity of leave in some cases, if the new application is approved. Specific advice should be sought if an employee’s application is refused so that they can consider how best to preserve their rights.

Broader Rules for Tier 1 (Exceptional Talent)

This route is open to 2,000 people per year if they were considered to be leading talent in the fields of science, humanities, engineering, medicine, digital technology or the arts. This immigration category has been widened to include certain individuals operating in “leading designer fashion businesses”. The British Fashion Council, under the endorsement remit of Arts Council England (ACE), will decide what constitutes a leading designer fashion business.

Update to Right to Work Checking Rules

UKVI have also released an updated version of the Right to Work guidance, which can be found here.

The main changes to this guidance include:

  • The lifting of transitional controls on the working rights of Croatian nationals on 1 July 2018 (the fifth anniversary of Croatia’s accession to the EU), Croatian nationals will no longer be required to obtain a specific right to work in the UK. They now fully benefit from free movement rights, in line with other EU nationals. This change has resulted in a change to the current Home Office Right to Work checklist;
  • Detail on how to conduct a check for Windrush generation individuals. UKVI have advised some individuals of the Windrush generation (those who arrived in the UK before 1973) and those non-EEA nationals who arrived in the UK between 1973 and 1988, may not be able to provide documentation from the acceptable document lists to demonstrate their entitlement to work in the UK. The new guidance explains how to conduct a RTW check for these individuals;
  • Clarification of the ‘grace period’ in cases of Transfer of Undertakings (Protection of Employment) transfers. Employers are given a ‘grace period’ of 60 days in which to carry out right to work checks for employees transferred as a result of TUPE; and
  • Clarification relating to on appropriate steps for employers in relation to existing employees, namely that follow-up checks are only required for existing employees where they have a time-limited immigration status. The guidance also clarifies that the law does not require employers to carry out retrospective checks on persons who lawfully commenced employment before 29 February 2008.

Employers should update their right to work check policies to ensure that the current lists of acceptable documents are used.

Turkish nationals

A new route to Indefinite leave to remain (ILR) has been introduced for Turkish business persons, workers and their family members who are in the UK with leave under the EU-Turkey European Communities Association Agreement (ECAA). The statement of changes defines these terms. This group can now apply for ILR after five years of continuous residence in the UK, provided the most recent period of leave is under the ECAA.  

Immigration Health Surcharge to Increase

The government plans to double the immigration health surcharge paid by temporary migrants to the UK. The surcharge will rise from £200 to £400 per year. The discounted rate for students and those on the Youth Mobility Scheme will increase from £150 to £300.

The annual charge is paid by people from outside the European Economic Area (EEA) who are seeking to live in the UK for 6 months or more to work, study or join family. This charge may be paid by an individual applying to come to the UK under Tier 2 (although some employers may pick up the cost of this).

Elaine McIlroy (Partner) and Erin McLafferty (Solicitor) are members of the Employment, Pensions and Immigration Team and are based in Glasgow. If you have any questions about preparing your organisation for Brexit, or about any other aspect of immigration law, please do not hesitate to contact Elaine or speak to your usual Weightmans contact.

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