Leaving the EU – Immigration and cross border implications
The UK left the European Union (EU) on 31 January 2020 and entered a transition period until 31 December 2020. The UK Government has ruled out extending that period.
It remains to be seen whether the UK can agree its future relationship with the EU by the beginning of 2021 or whether we leave with EU with no deal.
During transition, EU law continues to apply to the UK and its citizens, and the UK continues to trade with the EU as part of the Single Market.
EU nationals have an automatic right to live and work in the UK. The terms of the Withdrawal Agreement approved by the UK and EU Parliaments agreed that freedom of movement will continue between the UK and the EU during the transition period. Which ends on 31 December 2020. The same applies to EEA EFTA States nationals and Swiss nationals.
After the transition, EU nationals who want to come to the UK will largely be on the same terms as nationals of other countries. The ((new points based system) – see related articles below) will apply to EU nationals who want to reside and work in the UK from January 2021.
Equally, UK citizens wishing to move to an EU country from January 2021 will be subject to the national immigration rules of the relevant country. There is a desire for UK and EU to reach a reciprocal agreement in relation to short term business travel.
A point to note, is the common travel area between the UK and Ireland, established they joined the EU, will be preserved.
What will change?
The UK Government intends to end free movement after the transition period and sets out the future relationship in the Political Declaration. The Political Declaration states that mobility arrangements must be established between the EU Member States with full reciprocity, including visa-free travel for visits. These arrangements would be in addition to any separate agreements on the temporary entry and stay for business travellers without impacting the Common Travel Area between the UK and Ireland.
The Government has also introduced the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-2019 to end free movement of people and make EU (excluding Irish citizens), EEA EFTA and Swiss citizens and family members subject to UK immigration control from 1 January 2021.
This Bill provides the legal framework for the new immigration rules applying to all migration into the UK. The Bill has not yet been passed into law; however this is likely to occur once negotiations have been exhausted with the EU.
How will you be affected?
List of all questions and responses below (click the plus to expand the box for the answers).
There is concern among businesses who rely on cross-border transfers of staff and business travel that obtaining visas will prevent staff from cross border posting or visits. The EU has approved a Regulation which will exempt UK nationals from visa requirements when crossing the external borders of the Schengen area for short-stay visits from 1 January 2021.
UK nationals will not require a visa when travelling for up to 90 days in any 180-day period to an EU Member State (except Ireland) or a Schengen Associated Country (Iceland, Liechtenstein, Norway, Switzerland).
The measures in the EU Regulation are conditional on the UK granting reciprocal and non-discriminatory visa-free travel for all EU Member States. The UK Government has confirmed this is its intention (see the guidance on Visiting EU, EEA and Swiss citizens the UK).
Recognition of professional qualifications post-transition
EU citizens or UK nationals will continue to be able to rely on professional qualifications which were recognised before the end of the transition period in the country where they reside or work, to carry on activities in that country. However unless different arrangements are agreed, following the end of the transition period professionals seeking recognition will no longer be able to rely on EU rules and will need to comply with relevant domestic rules, as explained in the UK Government’s technical notice here and the European Commission’s technical notice here.
The Political Declaration simply states that the UK and EU should develop appropriate arrangements on those professional qualifications that are required for regulated professions, where in the parties’ mutual interest. The UK Government’s policy paper of 27 February 2020 states that the UK-EU free trade agreement should provide a pathway for the mutual recognition of UK and EU qualifications, underpinned by regulatory cooperation, so that qualification requirements do not become an unnecessary barrier to trade. A proposed framework is set out in Chapter 13 of the UK Government’s draft UK-EU Draft comprehensive Free Trade Agreement published on 19 May 2020. The EU negotiating directives of 25 February 2020 are more on-committal, stating that “the envisaged partnership should also include a framework for negotiations on the conditions for the competent domestic authorities to recognise professional qualifications necessary to the pursuit of specific regulated professions, where in the Union’s interest”. The EU draft Future Relationship Agreement published on 18 March 2020 takes matters no further as it has only a place holder for some guidelines on recognition of professional qualifications.
New immigration regime 1 January 2021
A new UK points-based immigration system will apply from 1 January 2021. Under the new system, EU and non-EU citizens will be treated equally. The new regime will facilitate the migration of highly skilled and skilled workers, students and a range of other specialist workers.
For skilled workers, the skills and salary thresholds will be reduced, the resident labour market test abolished and the cap on the number of applicants suspended. All applicants, both EU and non-EU citizens, will need to demonstrate that they have a job offer from an approved sponsor, that the job offer is at the required skill level and minimum salary and that they speak good English, which together will amount to 50 points; they will then need to accumulate a further 20 points from a variety of possible job, salary or qualification characteristics. There will no low-skilled or temporary work route, however the Seasonal Workers Pilot will be expanded for more applicants.
The aim is for key routes to be open by Autumn 2020 so that individuals can apply in advance of the system taking effect in January 2021.
The Government introduced a new global Talent fast-track visa (for the most highly skilled to enter if endorsed by an approved body) earlier in 2020. An unsponsored route for the most highly skilled workers, subject to caps, may being introduced at a later stage, but no details are available currently.
The new system will also provide for commitments agreed in existing and future trade agreements on business visitors and intra-company transfers.
More information will be made available when published.
See new points-based immigration system article below (related articles).
EU nationals residing in the UK by 31 December 2020
A key area of concern for employers is the position of EU nationals currently living and working in the UK and UK nationals living and working in the EU. The UK reached agreement with the EU to introduce a “settled status” for EU citizens who have been resident in the UK before 31 December 2020 for a period of five years. Individuals who are resident in the UK before 31 December with less than five years, can apply for pre-settled status.
Employers can continue to accept the passports and national identity cards of EU citizens as evidence of their right to work in the UK until 30 June 2021.
Read our EU Settlement Scheme article (see related articles-below).
UK migrants residing in the EU by 31 December 2020
UK nationals residing in the EU will have reciprocal rights. The UK has been unsuccessful in securing onward movement opportunities for these UK nationals, should they decide to change their EU Member State of residence. A document with a number of questions and answers on the rights of EU and UK citizens gives some insight into what was outlined in the Withdrawal Agreement.
The UK has secured similar protection for UK citizens in EEA EFTA and Swiss nationals.
Under EU law, the Withdrawal Agreement is binding on and in the EU Member States and on the European Union. EU Member States are therefore obliged to comply with the obligations of the Agreement.
UK citizens may need to apply for a new residence status according to each country’s decision.
The UK Government has published guidance on living In Europe, which also covers EEA EFTA States and Switzerland, as well as country-by-country guides.
For more information on each EU country and how UK citizens will be affected, please go to….
Links to relevant pages:
Employers should think about whether their employees will be required to work or visit offices in Europe or European staff to visit the UK, an what the implications are for approvals of visas. They should also think about recruitment of staff from Europe and whether they have the Home Office registration in place to make job offers.
They should also think about audited their existing staff to ensure those affected by Brexit are informed and can take appropriate action in relation to their status in the UK.
In terms of what employers can do:
- communicate with employees, particularly those who might be affected by changes in immigration law, and keeping them informed;
- considering if any current EU citizen employees working in the UK can apply for British citizenship or permanent residence
- provide support for employees to obtain settled status – there is an employer toolkit on how best to support EU citizens applying to stay in the UK), (https://www.gov.uk/government/collections/eu-settlement-scheme-employer-toolkit)
- provide similar support for British employees working in the EU;
- advise EU staff and British staff in EU to sign up for email alerts;
- prepare contingency resourcing plans to maintain continuity/retention of employment for EU nationals who may not want to remain in the UK;
- sign up for email alerts on transition and keep a close eye on the progress of the negotiations and on the Government’s proposals for a new immigration regime.
- Register for a sponsor licence – (see next point)
It will be necessary for employers who want to recruit from overseas including from the EU from 1 January 2021 to register with the Home Office as a sponsor. The Home Office has advised employers without a sponsor licence, who are thinking of employing migrants entering from 1 January 2021, to apply for a sponsor licence as soon as possible, as the new immigration routes will be available from autumn 2020 to allow applicants to apply for visas in time for a work start date of 1 January 2021.