Category: Brexit

Theresa May backs immigration plan that favours skilled workers

Theresa May’s cabinet has agreed a post-Brexit immigration system that will offer visas to immigrants in a tiered system based on skills and wealth, a flagship policy that is expected to be one of her key announcements to the Conservative party conference next week.

Downing Street hopes the migration policy will appeal to party members concerned about May’s leadership and the Brexit negotiations, which last week appeared to have reached an impasse at Salzburg when EU leaders declared her Chequers proposals would not work.

The Brexit negotiations update was held at the end of the cabinet meeting on Monday afternoon and the only person who referred to a Canada-style trade deal was the prime minister herself in her own presentation. She added that some EU heads of government were being more constructive than others behind the scenes, but did not specify which leaders.The meeting amounted to a moment of relief for the under-pressure prime minister, who heads to New York on Tuesday for a United Nations meeting before turning her attention to the party conference. One cabinet source said May was “just trying to get through the conference season intact”.

A white paper setting out the new immigration policy is due to be published later this autumn.

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MAC recommends removing the cap on Tier 2 work visas after Brexit

The Migration Advisory Committee (MAC) has published its research into migration from the EU and how it should be managed after Brexit. The committee recommends a policy allowing greater access for higher-skilled migration while restricting access for lower-skilled workers. It suggests extending the current scheme for high-skilled non-EEA migrants – known as a Tier 2 visa – to those from EEA countries as well. As part of this process, the cap on the total amount of workers allowed to enter under Tier 2 should be abolished and the range of jobs eligible for the visas expanded, the committee says. Current policy is to allow 20,700 high-skilled workers into the UK each year on Tier 2 visas. The current salary threshold for such visas is £30,000, which the report says should be retained. You can read the full report here.

 

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Recent changes in Immigration routes to tackle BREXIT labour shortage

UK Government has announced various addition of Immigration routes and Pilot schemes in order to tackle Brexit labour shortage to ensure smooth availability of skilled labour in the UK. In this article, we look over some of the recent routes introduced over the last few months.

Seasonal Workers – 2,500 migrants a year 

British farmers will be allowed to recruit 2,500 non-EU migrants a year under a new government pilot that will help alleviate an anticipated shortage of seasonal workers after Brexit. Under the new scheme, which will run for two years from next spring, non-EU nationals who travel to the UK to work on fruit and vegetable farms will be able to stay for six months before returning. This two-year pilot is expected to ease the workforce pressures faced by farmers during busy times of the year.

Overseas researchers – UKRI Science, Research and Academia

The ‘UKRI Science, Research and Academia’ scheme opened on 6 July 2018 by way of an addition to the Tier 5 (Temporary Worker – Government Authorised Exchange) visa route in an effort to encourage the ongoing growth of the research sector in the UK.  The Tier 5 (Temporary Worker – Government Authorised Exchange) route is the principal visa route by which non-EEA nationals who wish to undertake training and work experience are able to come to the UK.  The new scheme allows non-EEA researchers, scientists and academics to come to the UK for up to 2 years.The scheme is operated by UK Research and Innovation (UKRI) and means that they, along with 12 approved independent research organisations, including the Natural History Museum, are able to directly sponsor highly skilled researchers to work and train in the UK. Sponsored researchers include academics, researchers, scientists, research engineers or other skilled research technology specialists who will be hosted through an approved research institute, in a supernumerary role.

New UK Startup Visa for Entrepreneurs

The new route, announced during London Tech Week, will widen the applicant pool of talented entrepreneurs and make the visa process faster and smoother for entrepreneurs coming to the UK. It will replace a visa route which was exclusively for graduates, opening it up to a wider pool of talented business founders. It will require applicants to have acquired an endorsement from a university or approved business sponsor, including accelerators. The visa route has been designed following advice from the Migration Advisory Committee and feedback from the tech sector and other stakeholders. This route will launch in Spring 2019, further details will be announced in due course.

Removal of Doctors & Nurses from Tier 2 Visa Cap

The removal will mean there will be no restriction on the numbers of doctors and nurses who can be employed through the Tier 2 visa route – giving the ability to recruit more international doctors and nurses to provide outstanding patient care when required. The Tier 2 visa route, which has had an annual cap of 20,700 since 2011, has in recent months seen the number of applications exceed the monthly allocation of available places. This has been driven, in large part, by demand from the NHS, which accounts for around 40% of all Tier 2 places. As well as providing a boost to the NHS, it will also free up hundreds of additional places a month within the cap for other highly skilled occupations, such as engineers, IT professionals and teachers.

Tier 1 Exceptional Talent – Increased to 2000 per year

The first big change is that the number of places available per year has been doubled from 1000 to 2000. This is to be allocated between the five Designated Competent Bodies (DCBs) according to demand. The next big change is the introduction of accelerated settlement after three years, bringing the category in-line with Tier 1 (Entrepreneur) and (Investor) routes which have similar routes to settlement before five years.This means that recognised world leaders in their field can apply to settle after three years, and potential world leaders must wait until year five.

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Statement of changes

Statement of Changes Appendix EU – status for EU nationals and their families

The statement of changes to the Immigration Rules CM9675 of 20/7/18 contains new Appendix EU to be added to the rules and in force on 28/8/18 for the initial test phase. This is voluntary and applies only to persons on the payroll of the 12 NHS Trusts, and students and persons on the payroll of Liverpool Hope University, Liverpool John Moores University, and The University of Liverpool. The scheme will be rolled out on a phased basis from late 2018, to be fully open by 30 March 2019 (further details over the summer).

This, with parallel measures Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018 and The Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018  is intended to align with the Statement of Intent on the EU Settlement Scheme of 21/6/18.

Appendix EU (see text in SoC) is structured as follows, in outline, by paragraphs:

  • Annex 1: definitions
  • EU2 to EU8: requirements and procedure for grants of settled status (ILR)
  • EU9: validity requirements for applications
  • EU11: eligibility requirements for settled status (ILR) for EU citizens and their family members, and EU12 for the family members of certain British citizens
  • EU14: eligibility requirements for pre-settled status (5 years’ LTR)
  • EU15 and EU16: basis on which an application under Appendix EU will or may be refused on grounds of serious criminality, other public policy considerations or deception, as reflected in the draft text of the Withdrawal Agreement.

Paragraph 1 of the SoC disapplies the general grounds for refusal in Part 9 for applications under App EU, except para 323(ii)  323. A person’s leave to enter or remain may be curtailed: … (ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted;

Appendix EU provides that:

  • EU citizens and their family members who, by 31/12/20, have been continuously resident in the UK for five years will be eligible for ‘settled status’ (ILR).
  • EU citizens and their family members who arrive by 31/12/20, but who have resided here for less than 5 years, will generally be eligible for ‘pre-settled status’ (five years’ limited leave to remain in the UK), enabling them to stay until they have reached the five-year threshold, then apply for settled status.
  • Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join an EU citizen resident here after 31/12/20, where the relationship existed on that date and continues to exist when the person wishes to come to the UK. Provision for future children will be made, in line with the draft Agreement. A family member of a British citizen who is lawfully resident in the UK by 31/12/20 under Surinder Singh Reg 9 of the 2016 EEA Regulations will be eligible to apply under Appendix EU

The Explanatory Memorandum further states in paras 7.3-7 that

  • the requirements in App EU accord with the Withdrawal Agreement except where the UK applies more favourable criteria
  • beyond the Withdrawal Agreement terms there is no further discretion to refuse a valid application
  • administrative burdens will be minimised by only requesting necessary information (!)
  • Appendix EU is self-contained and displaces any provision made elsewhere in the Immigration Rules which would otherwise apply, e.g. in Part 1 (leave to enter or stay in the UK).
  • nationals of Norway, Iceland, Liechtenstein are not covered by the draft Withdrawal Agreement, but the intention is to secure ‘a similar deal’ for them and for UK citizens living in those countries
  • nationals of Ireland enjoy residence rights under the Common Travel Area arrangements between UK and ROI which are separate from the EU and not affected by the UK’s withdrawal, but they or their family members may apply under App EU if they wish
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Vulnerable EU citizens risk failing to secure right to remain in UK

Vulnerable EU citizens including the elderly, children in care and victims of domestic abuse are particularly at risk of failing to secure the right to remain in the UK after Brexit, academics have warned. As the UK draws closer to departure from the bloc, the government is developing a system to give EU citizens already living in the UK “settled status”. But a “potentially significant” number of people may not be aware that they need to apply, including tens of thousands of children, the Oxford University-based Migration Observatory said, warning that the government will need to ensure that those eligible are well-informed.

The Home Office said it was planning a range of support for vulnerable groups such as the elderly, children and families, victims of domestic violence, and those with English as a second language.EU citizens living in the UK are on average highly educated and should not be expected to have problems, the academics add, but if they have more than one of the vulnerabilities described, it will put them at risk of falling out of the process. There are about 3.4 million non-Irish EU citizens living in the UK, the vast majority of whom should be eligible for settled status.

For latest updates on the status of EU Nationals in the UK, please click here.

 

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Home Office in doubt whether a new immigration system can be created by March 2019

Home Office chiefs fear a new immigration system to track EU citizens for the first time will not be ready by March 2019. The alarm comes after Theresa May overruled officials to insist free movements ends on Brexit Day.

The decision means that after March 29, 2019, the Home Office must be able to both register EU citizens already here for permanent residency and separately track new arrivals during the Brexit transition period. Meanwhile Brussels had demanded anyone who arrives in Britain during the transition period – when free movement will effectively continue – be treated exactly the same as people already here, including gaining rights to stay long term.

In the negotiations, Britain has promised anyone who wants to stay will be allowed, subject to the same offer to Britons in Europe. Last year the Home Office managed to issue 164,000 work visas to non-EU nationals. This figure will have to rise to around 400,000 when EU citizens need visas.

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New settled status updates for EU citizens

The government on 07th November 2017 offered further reassurance for EU citizens and their family members by setting out further details of how its new settled status scheme will operate.Those applying to stay in the UK after we leave the EU will not have their applications refused on minor technicalities and caseworkers considering applications will exercise discretion where appropriate. We expect the majority of cases to be granted.

EU citizens will also be given a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful.In a technical document sent to the European Commission as part of negotiations, the government reiterates how the new system will be streamlined, low-cost and user-friendly, with EU citizens consulted on its design.

The Prime Minister has been clear that safeguarding the rights of EU citizens living in the UK and UK nationals in Europe is the first priority for negotiations and she said last month that an agreement is within touching distance. Secretary of State for Exiting the EU, David Davis said:

We have been clear that safeguarding the rights of EU citizens is our top priority in our negotiations. They make a huge contribution to our economy and society and we do not want to see that change as a result of our decision to leave the EU.

We will support everyone wishing to stay to gain settled status through a new straightforward, streamlined system.

The last negotiation round saw real progress in this area and I believe the document we have published today can facilitate the deal we need to guarantee the rights of UK citizens living in the EU27, and vice versa.

The document commits to:

  • giving EU citizens plenty of time to apply, with a 2-year grace period after we leave the EU to make an application for settled status
  • minimising the documentary evidence that applicants need to provide and enabling caseworkers to contact applicants to resolve minor issues
  • keeping the cost of an application to no more than that of a British passport
  • giving EU citizens a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful
  • making decisions solely on the criteria set out in the Withdrawal Agreement, with no discretion for other reasons for refusal
  • introducing a digital, streamlined and user friendly application system
  • not requiring EU citizens to have held comprehensive sickness insurance or to provide fingerprints
  • a simpler, lower cost process for those who already have permanent residence documentation.

The document also sets out that applicants will be asked to declare any criminal convictions and be checked against UK security databases. This is a reasonable measure to keep the country safe from those who have abused our hospitality by committing serious crimes.

If you are unsure whether to apply for a EEA PR document now or wait for the simplified process as detailed above, please get in touch with us to discuss more on 020 3695 4626.

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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.

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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.

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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.”

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