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Brexit and Immigration – into transition. UPDATE

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Posted by Matthew Davies on 31 January 2020

Matthew Davies - Immigration Lawyer
Matthew Davies Partner - Head of Business Immigration

At 11pm today, the UK leaves the EU. Concern about immigration was a key driver of the leave vote. There has been plenty of media noise and many announcements from Government about how Brexit will enable the UK to “take back control of our borders”. There will be changes ahead. Yet tomorrow, surprisingly little will have changed in relation to EEA free movement and access to our labour markets, or in the day to day mechanics of the immigration system.

The UK Parliament voted for the Withdrawal bill, enacting the draft agreement with the EU, a week after the general Election in December 2019. Last week, the UK Withdrawal Act was signed into law by the Prime Minister. This week, the European Parliament signed the withdrawal agreement with the UK, and the stage was set. The Transition period is a key part of the withdrawal agreement. It means that, between now and the end of 2020, most EU rules and processes continue to apply in the UK as a trade deal is negotiated.

Immigration is a key part of that temporary arrangement.

What happens now?

EEA national employees already living and working in the UK, or non-EEA dependent household family members whose status is based on theirs, still have valid status for now as free movement carries on throughout the Transition period. They can apply to convert their status to UK law under the EU Settlement Scheme and in some cases, upgrade it. Well over a million applications have already been made. Most applications prove relatively quick and straightforward, but there are still technical glitches. Some have been delayed by evidential complications, especially where there have been extended periods of absence or complicated family circumstances. There is still time – the EU Settlement Scheme is not due to close until June 2021.

EEA nationals can still move the UK to take up employment or self-employment during the transition period. Crucially, they will not be able to use the EU Settlement Scheme to convert unless they were based here before Brexit. Within 3 years, they will have to apply to stay via new points based system unless they qualify for an alternative status based on family or other circumstances.

What about the New Points Based System?

This week, the Migration Advisory Committee reported back to Government on proposed “new” post-Brexit point based immigration system for economic migration. As the Transition period ends, so does free movement for those whose status has not been converted under the EU settlement scheme. The system will therefore have to encompass EEA nationals, and the Government is taking the opportunity to repackage the existing system to show that it is “taking back control of our borders” from 2021. This is still very much at the planning stage, but based on the Report, the White Paper published in December 2018, the key expected changes will be:

  • The abolition of caps and quotas in the current Tier 2 sponsorship, although Tier 2 will probably be retained broadly as we know it.
  • Abolition of the Resident Labour Market Test, which is thought not to be effective.
  • A broadening of the Tier 1 Exceptional Talent / Global Talent visas for entrepreneurs into a stand-alone visa for employment or self -employment for those with advanced skills and qualifications in science, technology and arts and culture which are especially valuable to a dynamic the UK.
  • Lowering the default salary threshold from £30,000 to £25,600 to avoid pinch points in some of the skilled areas – these deals with the concern at speculation that the level might be held or even raised.
  • A rejection of a blanket low-skilled route, with only limited provision for shortage areas where low pay may account for recruitment challenges –which the MAC does not think immigration should be allowed to perpetuate.
  • EEA nationals who have no UK status by the end of Transition will be subject to the new system in the same way as others.

Ironically , the “new” points-based system may be less dependent on points than the current one. It will probably be built on the existing underlying technology platform of the Sponsor Management System – a reorganisation rather than a truly new system.

Useful links

Home Office UKVI guides to the EU Settlement Scheme

Migration Advisory Committee Report (detailed)

Note: In this update, “EEA nationals” is used to refer to

  •  EU citizens who are not British
  • Citizens of Iceland, Lichtenstein and Norway (who are in the EEA but not the EU)
  • Swiss nationals, who technically are neither EU nor EEA nationals but hold almost identical free movement rights through bilateral agreements with the EU

This note is a summary for outline guidance only, and not a substitute for detailed guidance or legal advice in any individual case or circumstances. It could change as a result of future deals with the EU or individual states.

About the author

Matthew Davies

Partner - Head of Business Immigration

Matthew is an expert in business immigration law, advising employers, business people and investors. Chambers UK quotes peers as saying he “has a tremendous knowledge of new developments, and is able to figure out complex situations”.

Matthew Davies

Matthew is an expert in business immigration law, advising employers, business people and investors. Chambers UK quotes peers as saying he “has a tremendous knowledge of new developments, and is able to figure out complex situations”.

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