Brexit: Businesses warn over ‘UK workers first’ proposal

Under the draft plan, leaked to the Guardian, firms would have to recruit locally unless they could prove an “economic need” to employ EU citizens.They could face a skills tax to boost training of UK workers if they still chose to employ unskilled EU staff.But business groups say a “sudden” cut could cause “massive disruption”.

The National Farmers’ Union claimed the “entire food supply chain” could be threatened.The leaked Home Office document has not been signed off by ministers, who will set out their post-Brexit migration plans later this year.But Defence Secretary Michael Fallon said: “The public voted to leave the European Union. That means freedom of movement has to end.”

He said “people with the right skills” would still be “welcome”.But he added: “Equally we have to make sure that British companies are also prepared to train up British workers.

Full story can be read here.

UK gov departments will share digital records to clamp down on immigration

Three government departments will share their data on citizens to develop a digital immigration system after Brexit, improving the prospects of both those coming into the country and existing UK residents.

Home Office, HM Revenue & Customs and the Department of Work and Pensions (DWP) will share the information they hold and introduce a system to make it easier for employers and public service departments to check immigrants’ identities, according to an anonymous source who revealed the documents to the Guardian.The document, called Border, Immigration and Citizenship System After the UK Leaves the European Union, will apparently be “as digital, flexible and frictionless for individuals and employers as possible.”

It includes a portal where employers and any other party that needs to find out information about those entering the country can check an individual’s immigration status and “take action where necessary.” The portal will link together all the information about each person, including their tax records, benefit status and other records in a fully digitized way. The report also goes into detail about other plans when the UK exits the EU, including employment restrictions on those who come to the UK from other countries in the EU, saying it will give preference in the job market to resident workers. EU nationals would be restricted from seeking work and reduce the opportunities for workers looking to settle in the UK for long periods of time.

We are clear that, wherever possible, UK employers should look to meet their labour needs from resident labour. It is now more important than ever that we have the right skills domestically to build a strong and competitive economy,” the paper said.The government also plans to scrap the rights for extended family members being able to reside in the UK. “We propose to define family members as direct family members only, plus durable partners,” the report said. For a spouse to be allowed entry, the UK resident must be earning a minimum of £18,000 a year.

“Put plainly, this means that, to be considered valuable to the country as a whole, immigration should benefit not just the migrants themselves but also make existing residents better off,” the report finished. The proposals are an attempt to address net migration, which the government aims to cut from 250,000 annually, down to “sustainable levels” in the tens of thousands.

EU immigration offer could lead to Brexit reversal, claims Adonis

The decision of the British people to leave the European Union could be reversed next year if France and Germany agree that the UK can take control over immigration while staying in the EU single market, the former Labour cabinet minister Lord Adonis said on Sunday.With concern over the government’s handling of Brexit growing ahead of a key parliamentary vote on Monday, the peer said Angela Merkel, who is expected to be re-elected as German chancellor later this month, and French president Emmanuel Macron could well make such an offer if they believe it could mean the UK remaining in the EU.

Writing in the Observer, Adonis said he believes a majority of peers in the House of Lords will support an amendment to the EU withdrawal bill – now passing through the Commons – requiring another referendum before Brexit takes effect, with the options being to accept the deal on offer, or stay in the EU.Such an amendment for another national vote, Adonis said, would stand a good chance of being passed by the House of Commons because Labour would by then have reason to support it, and sufficient pro-EU Tories would also rally behind it, he argues.

“The interplay between a referendum and such a Merkel-Macron ‘offer’ will be vital,” he writes. “If it is clear by next summer that Britain is going to hold a referendum, then the incentive for them to make a bold offer greatly increases.”He adds: “A lot depends upon whether the alternative is the status quo – or EU membership without freedom of movement in respect of right to work and right to reside for all EU nationals. If Chancellor Merkel and President Macron make an offer, probably over the heads of the British government, for the UK to stay in the economic institutions of the EU but with national control over immigration, then I believe the referendum can be won.

“Why might Macron and Merkel make this offer? Partly because – in Macron’s case – he (rightly) doesn’t believe that unrestricted free movement of labour is integral to the single market. Partly because many other EU leaders agree with him. And partly for the big strategic reason – which weighs on strategic thinkers in Berlin – that, if Britain leaves the EU, 80% of Nato resources will then be outside the EU, which is hardly a recipe for European security and stability if you are looking across at the Russian and Chinese bears.”While Theresa May is expected to avoid any significant Tory rebellion over the EU withdrawal bill at the second reading stage on Monday, there is growing concern among MPs of all parties at the prime minister’s plan to leave the single market and customs union, and the lack of progress in negotiations with Brussels. On Sunday around 30,000 people marched on Westminster demanding that the UK stays in the EU.

Adonis’s intervention also comes amid signs that opponents of a hard Brexit in all the main parties are ready to work together to amend the bill, both to ensure that the option of staying inside the single market is kept open, and that parliament, at the very least, has a binding vote on the final deal before Brexit happens in March 2019. The Observer understands that meetings about how to thwart a hard Brexit have already taken place between senior Labour figures, the Liberal Democrats and Scottish Nationalist party MPs and pro-EU Tories.

Full story can be read here.

Britain could remain under direct control of European court for years

Britain could remain under the direct control of the European court of justice for years after Brexit, it has emerged, and still be forced to implement the court’s rulings on vexed issues such as immigration.

The expanding scale of the prime minister’s climbdown over her promise to “take back control of British law” was revealed as the government published its latest position paper on dispute resolution before the next round of Brexit talks.While stressing that the range of options it contains are hypothetical, the government outlines only scenarios in which “direct” ECJ authority is eventually replaced by a new court or committee over which Europe maintains “indirect” control.

It has also become clear that the UK government is now open to preserving the direct authority of the ECJ throughout the interim transition period after March 2019 – during which it is expected to spend years negotiating a new trade agreement. News of the government’s evolving position has led to a growing political stormthis week, with Tory Brexit supporters claiming Theresa May is abandoning the hardline position she set out in last year’s Conservative party conference speech and in a speech at Lancaster House in January.

European determination to use the ECJ to protect the rights of its citizens and companies after Brexit is forcing the UK into a corner and threatens to derail talks in Brussels before the British negotiator, David Davis, can switch the discussion on to trade and future relations.

Speaking during a visit to Guildford, the prime minister said: “What is absolutely clear, when we leave the European Union we will be leaving the jurisdiction of the European court of justice. Parliament will make our laws. It is British judges who will interpret those laws and it will be the British supreme court that will be the arbiter of those laws.” The UK government is, however, prepared to enter negotiations about the role of the ECJ during the interim implementation phase that it admitted last week was necessary to negotiate new customs and trade relations. It is understood this may involve maintaining direct control for a limited period.

In the long run, the government draws a distinction between enforcement mechanisms and dispute resolution once the new Brexit agreement is in effect, arguing that individual complaints can be dealt with solely by UK courts and only government disputes escalated to the new arbitration body. However, test cases involving individuals appealing against unfair treatment by, for example, UK immigration authorities may quickly escalate into a dispute over the interpretation of the whole agreement, potentially allowing the ECJ to step in on behalf of aggrieved EU citizens.

The government insists there remains a meaningful difference between direct and indirect control, although it concedes that in some of the scenarios it outlines – such as in an agreement between the EU and Moldova – there may be little practical option but to agree to rulings from the ECJ or else see the whole agreement fall apart. It argues arbitration courts and committees are standard practice for the EU though and need not involve a direct role for the ECJ over national law in the first instance.

Sir Paul Jenkins QC, a former head of the government’s legal department, said the government paper contemplated a legal solution similar to that adopted by Efta (the European Free Trade Association), which has its own non-binding court. He tweeted: “If only those of us who predicted an Eefta-like solution a year ago had put money on it.”

Other legal commentators viewed proposals for “voluntary references” to the ECJ to interpret EU rules as a significant softening of the government’s red line over judicial independence in its Brexit negotiating position. The proposals were welcomed by Gunnar Beck, a barrister and EU constitutional law expert who also works for the thinktank Policy Exchange’s Judicial Power Project, which has adopted a pro-Brexit position. He said: “Today’s paper sets out an interesting and intelligent starting vision of future cooperation between UK and EU which more closely resembles other agreements between sovereign states rather than subjection to the European legal order.”

Mathew Rea, a partner at the law firm Bryan Cave, said: “This is a clear backtrack on the government’s previous stance that the ECJ would be a red line in the Brexit negotiations and that there could be no future role whatsoever for the ECJ post-Brexit.”

Changes to Spouse Visa income requirements.

Following the landmark Supreme Court decision in the case of R (on the application of MM (Lebanon)) v Secretary of State for the Home Department in February 2017, although the judges upheld in principle the Minimum Income Rule, which requires an income of at least £18,600 for British citizens and others to sponsor a foreign partner, the decision did offer a glimmer of hope for the countless number of couples who, although in possession of sufficient funds, cannot meet the onerous rules with regard to the source of the income. The judgment refers to the fact that 30,000 spouse applications were refused between 2012 and 2014 and only 26 were referred for further consideration outside of the Immigration Rules, relying instead on Article 8 human rights grounds.

The court did however rule that the Minimum Income Rule was unlawful in failing to protect children and failing to take account of other sources of income not permitted under the immigration rules.

For example, in the case of British citizens who are not in active employment, perhaps through child care commitments or study, unless these individuals can provide evidence of savings of at least £62,500, their foreign national partner will not be able to meet the minimum income requirement in an application for entry clearance, even if said partner is earning in excess of £18,600.

Viewers of the May/Corbyn Q and A session hosted by the BBC a few days prior to the General Election on 8 June 2017 might recall listening to the plight of a young member of the audience, pleading for these rules to be softened. She recounted how she had met her husband at university in the UK, fell in love and married, only to then have to immediately separate and conduct a long distance marriage once his studies ended, so that they could amass the necessary £62,500 in savings, which has to be held for six months!

So, what is this glimmer of hope offered by the esteemed Supreme Court judges? An opportunity for the government to amend this unfair rule to permit the income of the foreign partner to be taken into account you might think! Alas not so.

The government published its latest Statement of Changes on 20 July 2017 with the stated intention on giving effect to the decision in MM. The main provisions are:

  • new general provisions which require the decision-maker, in the circumstances specified, to consider whether the minimum income requirement is met if the other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM-SE are taken into account. The specified circumstances are that, firstly, the minimum income requirement is not otherwise met and, secondly, it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of the application a breach of Article 8, because it could result in unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years, whom it is evident would be affected by a decision to refuse the application.
  • Paragraph 21A of Appendix FM makes provision as to the other sources of financial support which the decision-maker will take into account in such cases. These are: a credible guarantee of sustainable financial support from a third party; credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or any other credible and reliable source of income or funds available to the couple. Paragraph 21A also makes provision for particular factors which the decision-maker will consider in determining the genuineness, credibility and reliability of such other source of income, financial support or funds.
  • A requirement that the decision-maker, when an application does not meet the requirements of the rules, goes on to consider on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of the application a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.
  • A requirement for the decision-maker, in considering an application under the new general provisions, to have regard, as a primary consideration, to the best interests of any child affected by the decision.
  • A stipulation that grants of visas under these new general provisions will put applicants on the 10-year route to settlement, with scope to apply later to enter the five-year route where they subsequently meet the requirements.
  • Measures to ensure that a child is granted leave of the same duration and subject to the same conditions as their parent, who is or has been granted leave under these rules.
  • Measures to ensure that the partner of a person with refugee status or enjoying humanitarian protection cannot qualify for indefinite leave to remain before their partner does.

It is hard to conceive of circumstances which are not exceptional when considering the enforced separation of a family. No doubt these rules will give rise to a substantial body of case-law to decide where the line should be drawn and most cases will inevitably be decided on their facts. It is regrettable that the government does not define ‘unjustifiably harsh’ consequences, which means that applicants will have to amass strong evidence in support of their application in the hope that it meets the unknown threshold of harshness in order to engage Article 8.

Where there are children involved, it is most likely that Article 8 will be engaged, in order to meet the requirement to ensure the best interests of the child are served.

Not only do these rules impact British citizens but also those with indefinite leave to remain (ILR) in the UK. Following Brexit, EU citizens will have to apply for ILR in order to secure ongoing rights to remain in the UK. They will also be subject to the Minimum Income Rule should they wish to bring family members to the UK. Until now EU citizens have been able to bring their non-EU family members to the UK by meeting a considerably lower income threshold.

Certainly the immigration rules continue to throw up challenges for couples and their children to get on with their lives in the UK and no doubt the EU dimension will engender further complexity.

UK-EU freedom of movement to end in March 2019

Freedom of movement will end as soon as Britain leaves the EU, the immigration minister has said, as the government prepares a survey on the benefits of migration from the bloc.

Brandon Lewis also confirmed that the government intended to reduce net immigration to the tens of thousands – a promise the Conservatives have failed to keep since taking office in 2010 – though he refused to say it would be achieved within this parliament.“Free movement of labour ends when we leave the European Union in the spring of 2019. I’ll be very clear about that,” Lewis told BBC Radio 4’s Today programme on Thursday.

“Obviously, there’s a period of negotiation we’re going through with the European Union at the moment. But we’re very clear that free movement ends. It’s part of the four key principles of the European Union. When we leave, that, by definition, ends,” Lewis said.His comments appear to run counter to recent reports that the government is willing to allow freedom of movement to continue during a transitional period lasting three or four years.

The remarks are likely to alarm businesses, which would have less than two years to prepare for an end to free movement of labour with the EU. However, it could be that while freedom of movement technically ends with Brexit, the arrangements are still replicated during an implementation phase.

In a sign this may be the case, Lewis reiterated the Conservatives’ commitment to reducing net immigration to a less than 100,000 people a year, but he refused to say it would be met by the end of the parliament, claiming that it was impossible to do so while freedom of movement remained.

 

UK must agree implementation period for EU migration curbs – Lords committee

The European Union and Britain offered few compromises at their first full round of Brexit talks which ended on Thursday, and the pound fell on worries that British ministers were prepared to walk away without a deal.

While negotiators laid out their disagreements in Brussels, Prime Minister Theresa May met company bosses at home, with one employers’ group saying her government needed to engage in “sustained and structured” discussions with business over Brexit and avoid an abrupt departure from the bloc. Separately, academics warned of “widespread, damaging and pervasive” costs if Britain failed to reach at least a transitional trade deal with the EU before its scheduled departure from the bloc less than two years from now. At the European Commission, the negotiators laid out their opening positions in four days of talks that showed some common ground. But they also confirmed differences over how to protect the future of expatriate citizens, while uncertainty persisted over a financial settlement and the future of the Irish border, which will become an external frontier for the EU in 2019.

Chief EU negotiator Michel Barnier said there was “a fundamental divergence” on how to protect the rights of EU citizens living in Britain and of Britons in the remaining 27 EU countries after Brexit. He said European courts should guarantee citizens’ rights after Brexit. “Any reference to European rights imply their oversight by the Court of Justice of the European Union,” he told a joint news conference with British Brexit Secretary David Davis. Britain, however, says people voted in last year’s Brexit referendum to end shared EU sovereignty, and its judges should therefore have jurisdiction.

Davis said the meetings in Brussels had provided “a lot to be positive about”. But when asked if Britain would accept the principle of a net payment from London to Brussels – and not vice versa as some British ministers have suggested – he gave no direct answer. Barnier called on Britain to clarify at the next round of talks in August how it would maintain a common travel area with the Republic of Ireland, which will remain in the EU.

Both sides have said they want to avoid reimposition of border controls between the republic and British-ruled Northern Ireland. However, so far neither has proposed a solution to an issue that remains sensitive almost two decades after a peace deal ended years of violence in the province.

Full story can be read here

Wrong Brexit immigration policy could leave north-east industries without a workforce

The Under-Secretary of State for Scotland said he had grave concerns for the north-east’s fish processing, soft fruit and seasonal farming sectors, which rely heavily on EU nationals.

Lord Duncan said there needed to be more focus on how to allow EU nationals to continue to work in the north-east of Scotland after Brexit. He said: “The area I have most concern about is the EU nationals question, particularly on the fish processing side, where upwards of 90% of workers are EU nationals. These are challenging but very well-paying jobs but they are not attractive jobs and so they are filled with migrants in places like Peterhead.

“How do we create a system that allows EU migrants to continue to fill these processing jobs as well as those in farming and seasonal work?”

Lord Duncan said he did not think rural affairs minister Michael Gove’s preferred points-based system was workable. He said: “It needs to be a non points-based system.”

Full story can be read here

Theresa May under pressure to drop migration target after warning over Brexit recruitment crisis.

Theresa May has come under new pressure to drop her target to reduce migration after a report warned that Brexit is already causing recruitment problems for UK companies.

The Recruitment and Employment Confederation (REC), the professional body for the recruitment industry, said the Government’s failure to outline a post-Brexit immigration policy was adding to uncertainty for both business and EU workers in the UK. REC’s survey of 607 employers found evidence that a growing number are taking on temporary workers to plug gaps caused by skill shortages. Some 87 per cent intend to maintain or increase their use of temporary staff in the next three months.

Kevin Green, REC’s chief executive, said: “Brexit is making the situation more challenging. In London for example, a third of people working in construction are from the EU and it’s difficult to see how firms will manage if their workforce aren’t encouraged to stay in the UK and continue to contribute to our economy.”

Mr Green added: “Decisions about the future immigration system are too important to be subject to political whim – we need policy to be built on sound evidence and data. Businesses need access to people to deliver growth, and that the current UK workforce alone cannot meet demand.” The REC’s “jobs outlook” report said the engineering, construction and education sectors could face unfilled vacancies in September or October.

Full story can be read here

Brexit talks must not lose sight of immigration issue.

We hear masses about a Brexit “Bill” and about the future role of European Court of Justice. But what has happened to the issue of free movement? Wasn’t this supposed to be one of the Government’s fabled “red lines”?

While Theresa May  in her manifesto renewed David Cameron’s vow to bring net migration down to 100,000 a year we have scarcely heard a thing on the subject since the election. There has to be a suspicion that the Goverment is preparing for a climbdown, that it is opening the way for a deal in which Britain would remain partially in the single market with EU citizens free to travel to Britain, to look for work here and to claim benefits here much as before. In fact the Government began to change tone subtly on free movement as early as the first week in April even before Theresa May made her decision to call a general election.

Speaking on a trip to Jordan, about as far from the political fray of Westminster as she has been in recent months, the Prime Minister started to talk of an “implementation period” in which free movement could continue to operate for an unspecified time. There has been a similar shifting of position in the Government’s promise to guarantee the rights of EU citizens already resident in Britain. There is widespread agreement that people settled in Britain should have the right to stay in return for UK citizens resident abroad having the right to remain there.

But there is the issue of a cut-off date: since when should an EU citizen have had to be living in Britain to qualify for the automatic right to stay? At first it was suggested that it should be the date of the referendum: June 23 last year. But the date keeps slipping forward. It now could be any date between when Article 50 was triggered – in March this year – to the date on which Britain officially leaves the EU, expected to be March 2019.

Full story can be read here