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Brexit: A ‘Norway-style deal’?

The Labour Party has made it clear that it will not support the ‘Great Repeal Bill’ in its current form. It was reported last week that at least 15 Conservative MPs are in talks with a group of Labour MPs about a deal which could keep the UK signed up to the principle of free movement after it leaves the EU.

The deal has been described as a ‘Norway-style deal’. But what does that actually mean?

Under the proposed plan, the UK would remain part of the single market post-Brexit, as a member of the European Economic Area (the EEA). It would continue to benefit from free movement of goods, without applicable customs fees. However, unlike EU member states which are bound by a common trade policy, under the proposed plan, the UK would have the freedom to negotiate its own free trade agreements with non-EU countries. In exchange, the UK would be required to apply largely the same free movement of people principles as EU member states.

Whilst per capita UK contribution to the EU would fall, there would still be a ‘fee’ involved in being a member of the EEA.

From the roughly 23,000 EU laws currently in force, the EEA has incorporated around 5,000 (roughly 21 per cent). If the UK joins the EEA, a number of EU policy areas would continue to apply to it, including financial services, social and employment laws, and energy and climate change policies. While the EEA Agreement includes provisions for non-EU members to be consulted on new legislation, the UK would lose its right of veto in the European Council.

Even though details of the Great Repeal Bill have now been published, it’s all still speculation as to what happens in the Brexit negotiations and what our relationship with Europe will look like going forward. Whilst there is a general consensus that our employment legislation will remain largely unaffected by Brexit, what happens to our immigration model is still anybody’s guess.

Stay tuned to our Blog for all employment and immigration Brexit updates.

Brexit: A ‘Norway-style deal’?

The rights of EU citizens in the UK

The UK government’s policy paper setting out its offer to EU citizens and their families in the UK has been published. The offer is different depending on how long a person has been in the UK.

People who have been continuously living in the UK for five years will be able to apply to stay indefinitely by getting “settled status”. A settled status residence document will prove an individual’s permission to continue living and working in the UK. Those already with an EU permanent residence document will be required to apply. The application process should come online before the UK leaves the EU, and hopefully in 2018. The government has pledged to make the application process as streamlined and user-friendly as possible.

A “cut-off date” will be relevant for other people. The “cut-off date” will be the date after which EU citizens will no longer automatically be entitled to stay in the UK. The date is still to be negotiated, but may fall at any point between 29 March 2017, the date that Article 50 was triggered, and the date that the UK leaves the EU.

People who arrived in the UK before the cut-off date, but will not have been here for five years when the UK leaves the EU will be able to apply to stay temporarily until they have reached the five year threshold. They can then also apply for settled status as set out above.

People who arrive in the UK after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under the future immigration arrangements for EU citizens. We do not yet know what the arrangements will be. The government has said that there should be no expectation by this group of people that they will obtain settled status.

Please see our newsletter at the end of the month for more information on this development.

The rights of EU citizens in the UK

Status of EU citizens in the UK

The Home Office has sent a communication to interested parties following the government’s publication of a paper outlining its offer to EU citizens in the UK. The government has reiterated its position that no action need currently be taken. “The UK will remain a member of the EU until March 2019 and there will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU, during this time. So, EU citizens do not need to apply for documentation confirming their status now.”

The government’s policy paper sets out that the government will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. It aims to make the process as “streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules”. It is expected the new application system will be up and running in 2018.

Status of EU citizens in the UK

Slowly getting there – what might immigration look like after Brexit?

It may not have been accompanied by the usual pomp and circumstance, but the Queen’s speech yesterday did give us some further clues as to what the government has planned for EU nationals post-Brexit. In her speech, the Queen confirmed that there were plans for an immigration bill which would enable the government to end the free movement of EU nationals into the UK, but still allow the country to attract “the brightest and the best”. She also stated that the bill would require EU nationals and their families to be “subject to relevant UK law”. This seems to suggest that we can expect to see a skills-based immigration system for EU workers following Brexit. Reading in between the lines, it also seems we can expect those EU nationals already working in the UK to be allowed to remain, if they choose to do so. However, those who choose to do so will be subject exclusively to UK law, and not enjoy the protections afforded by the European Court of Justice. Presumably this would work along the lines of Norway’s membership of the single market.

Currently EU nationals in the UK are advised to apply for permanent residency if they meet the qualifying criteria. The thinking being that this may be sufficient to secure their stay in the UK after Brexit. Theresa May is in Brussels for Brexit talks today, where she is set to address EU leaders on her plans for those 3 million EU nationals currently residing in the UK, and the 1 million UK citizens currently residing elsewhere in Europe. We understand that full details of her plans will be published on Monday, ending the uncertainty that currently hangs over those who have exercised their right to freedom of movement, and over their employers.

Slowly getting there – what might immigration look like after Brexit?

Two-year visa for young Europeans?

Given that, in the UK, more than half a million EU nationals work in the retail, hotel and restaurant trades (accounting for 14 per cent of the workforce), there is real concern as to whether post-Brexit there will be an adequate supply of low-skilled workers to fill these roles. Our previous blog post looked at permanent residence applications as an option for European workers already in the UK. However, the government is now looking at ways to ensure that the supply of low-skilled workers is sustained post-Brexit.

The government is currently considering a two-year fixed visa for young Europeans who want to work in the UK in certain low-skilled sectors (nicknamed the “barista visa”), a proposal put forward by crossbench peer and Migration Watch UK chair, Lord Green. Applicants for such a visa would not be able to claim benefits or bring dependants into the UK. This would be similar to the youth mobility scheme which allows young people from certain countries (for example, Canada and Australia) to come to the UK to work for up to 24 months. If this were to be implemented, the government would be looking for reciprocal arrangemets in Europe for the UK’s young people.

Whether or not the government implements such a visa programme remains to be seen. However, it is good to see that there is growing momentum in working out what the post-Brexit immigration system could look like.

Two-year visa for young Europeans?

Brexit: Three, two, one…we have lift off!

Yesterday was an historic day, as Prime Minster, Theresa May, formally triggered the two year ‘Brexit’ process. As commentators have reported, “there can be no turning back”. The Prime Minister has previously committed to protecting workers’ rights post-Brexit, and the general view is that little will change in the employment law landscape, in at least the short-to-medium term, as a result of Brexit.

Details of the planned Great Repeal Bill are to be published shortly. One of the main aims of the Bill is to transpose existing EU legislation into domestic UK law. Some have reported that Parliament may take the opportunity to axe some of the less popular EU laws, with the Working Time Directive on the line. However, the Government will need to balance political pressure from employers against pressure from the general population.

The Prime Minister has confirmed that the UK will exit from the single market. This is undoubtedly related to the fact that membership in the single market requires member states to embrace the concept of free movement of people. Notwithstanding this announcement, shadow home secretary, Diane Abbott, has called on the left to back free movement as workers’ right. Ms Abbott argues that workers, both UK national and foreign, are likely to be hurt if governments start placing controls on where they can be employed. Ms Abbott’s approach is different to a number of her senior Labour colleagues, who have called for a “fundamental rethink” of free movement, suggesting that there could be a distinction between people migrating for jobs and those who come to look for work.

What our immigration policy will look like going forward remains a mystery. Speculation is that we may end up with an Australian-style points system or a Swiss system. However, to date, the government has refused to be drawn on this. They insist that Britain will have a “bespoke immigration system” post-Brexit and that whatever is agreed will be a “unique arrangement” between the EU and the UK.

Whatever happens, the next two years are likely to be an interesting, and potentially challenging, time for employers and employees alike.

Brexit: Three, two, one…we have lift off!

The future of migrant workers in the UK?

With the Prime Minister preparing to trigger Article 50 around 15 March, and so begin the process of Britain’s exit from the European Union, the Cabinet’s Brexit Committee has started to prepare a two-stage plan to deal with immigration. The plan will seek to deal with EU nationals already in the UK, and to set up a new visa regime for those who arrive in the UK in future. The Prime Minister intends that this will go hand in hand with the deal with EU member states to safeguard the rights of British citizens living in the EU, as well as those of EU citizens living in Britain. If such a deal can be reached, it is expected that all EU citizens residing in the UK as at the date Article 50 is triggered will be protected.

The focus of the proposal, which is thought to be outlined in a consultation document to be published this summer, is to take steps to enable the UK to access the skills of workers in key industries in the short term, and to ultimately seek to reduce migration. The proposal, which is subject to the consultation and is not expected to be introduced as a bill until early 2018, is expected to include:

  • five-year working visas for new arrivals who are coming to the UK to take up jobs in key industries (including health and social care, and construction);
  • creation of a “migration advisory committee” to advise on how many visas should be issued in each key industry; and
  • plans to train British workers so that they can fill jobs in sectors which currently rely heavily on migrants, so that the number of visas issued can be reduced over time.

The bill would become law before March 2020. This will be of particular interest to employers who rely heavily on migrant workers.

The vote in the House of Lords last week also means that the government may need to amend the Brexit Bill to guarantee the rights of EU citizens already living in the UK. This will hopefully result in more clarity for the thousands of EU citizens working in the UK and the companies that employ them.

 

 

The future of migrant workers in the UK?

Insight: UK Employment Law Round-up – December 2016

Employment Round Up THUMBNAIL Welcome to the December edition of our employment law round-up. In this edition, we couldn’t fail to give you an update on the most important piece of constitutional litigation of our time, which has been heard by the Supreme Court on Article 50. Other festive treats include a summary of recent restrictive covenants cases (first published on HR-Inform) and unfair dismissal litigation. We have also given you our take on calculating rest breaks for workers, and the dangers of using employees’ personal data unlawfully.

Read the full newsletter here.

Insight: UK Employment Law Round-up – December 2016

Women and Equalities Committee launches inquiry to consider implications of Brexit on equality issues

The House of Commons’ Women and Equalities Committee has launched an inquiry to examine the implications of leaving the EU on equalities legislation and policy in the UK.

The inquiry aims to ensure the UK has strong equalities legislation outside the EU. Committee Chair Maria Miller said that the new inquiry is launched “against a backdrop of growing consensus on the need for robust parliamentary scrutiny of the UK’s exit from the European Union”.

The inquiry asks for views on the implications of Brexit on equalities legislation, the impact of European Court of Justice decisions on cases in the UK and what role national bodies might be required to play to ensure that the UK maintains and develops its equalities legislation and policies.

The deadline for written submissions is Wednesday, 9 November 2016.

Women and Equalities Committee launches inquiry to consider implications of Brexit on equality issues

Update on EEA applications for UK Permanent Residence

Due to continuing uncertainty following the Brexit vote, EEA nationals who qualify are acting now to secure their right to stay in the UK.

No doubt to help with the influx of applications received from EEA nationals, the Home Office is making changes to its application procedures. From 1 October 2016, it has announced that European passports filed with applications on forms EEA(QP) or EEA(PR) can take advantage of a “return service”.

This means that a local authority (for example, a county council or city council) can, for a fee, photocopy the passport and forward a copy, with the checklist and application, to the Home Office.  This will enable an applicant to keep their passport while the Home Office is processing the application. While the application may be caught in a backlog, at least the EEA national retains their passport.

Update on EEA applications for UK Permanent Residence