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MAC to examine the role EU nationals play in the UK

The UK government has tasked the Migration Advisory Committee (MAC) to examine the role EU nationals play in the UK economy and society. MAC is the government’s independent advisers on migration.

Amber Rudd, the Home Secretary, has engaged the MAC. It will look into the British labour market, the overall role of migration in the wider economy and how a modern industrial strategy should align with the UK’s immigration system. The MAC will consult widely with businesses, employer organisations and EU citizens working in the UK.

The importance of this should not be underestimated, since free movement will end when we exit the EU. The government is working on plans to develop the flow of migration from Europe – see our blog post from 13 July (http://www.ukemploymenthub.com/the-rights-of-eu-citizens-in-the-uk). The UK and the European Commission had key discussions at the end of July. The next round of negotiations is scheduled for late August.

MAC to examine the role EU nationals play in the UK

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?

EU family members’ rights

Family members ‎of EU nationals can join them in another member state if the EU national is exercising treaty rights. This may mean, for example, that they are studying or working.

The EU national may qualify for permanent residence after a qualifying period of time in the UK. Once an EU national gets permanent residence they may then apply for British citizenship. One would assume that this also means that they can enjoy family life in the UK.

Until now this has not been so, but the position may be about to change. Once an EU national becomes a British citizen, they are no longer entitled to rely on EU law and the rights derived from it for family members.‎ However, the Advocate-General has given an opinion in Lounes (C-165/16) that non-EU family members should be able to remain in the UK with their dual EU and British family member. The Advocate-General considered that the treatment of Mr Lounes’ wife (the dual national) should be no less favourable than before her naturalisation, or than would be granted to her if she were forced to move to another EU state to keep her family together.

While this is only the Advocate-General’s opinion, and is therefore only advisory and non-binding on the Court of Justice of the European Union, it is rare for the Advocate-General’s opinion to not be followed. The 15 judges at the court will consider the case in the summer.

This could have a far-reaching ‎impact on EU nationals who wish to obtain dual citizenship to be sure of their right to remain in the UK once the UK leaves the EU. Previously EU nationals have held off naturalising as British citizens for fear that their family members would not be able to remain in the UK. We will watch the progress of this case carefully and bring you an update as soon as there is more news.

EU family members’ rights

Adult dependent relatives – judicial review challenge

The Immigration Rules on visa applications ‎made by adult dependent relatives of UK citizens were changed in July 2012. An adult dependent relative may be a parent, grandparent or other adult dependent relative. There was concern at the time that the Home Office had tightened the Rules too much.

The Rules require that:

  • The applicant must because of age, illness or disability require long-term personal care to perform everyday tasks.
  • The applicant must be unable, even with the practical and financial help of the UK relative, to get the required care in the country where they are living. This must be because it is not available and there is no person in that country who can reasonably provide it, or it is not affordable.

Home Office statistics bore out that concern. Since the Home Office changed the Rules, the average number of successful applications each year may have reduced by at least 93 per cent.

BritCits, a campaign group, challenged the current requirements. It brought a judicial review application. It argued the Rules defeated the purpose of the law under which they were made. It also argued the Rules raised expectations without there being any real possibility of the Rules being met! Its third argument was that the Rules interfered with family life.

However, the Court of Appeal has dismissed the challenge brought by BritCits to the High Court’s dismissal of the judicial review application.

Applicants applying in this category will have to make applications in the knowledge that their success rate is exceptionally low, and, despite a challenge to the Immigration Rules, the Rules will remain as drafted. Applicants will continue to have to pull together as much evidence as they can to show they meet the requirements. Although the Rules require scrutiny of the available care in the adult dependent relative’s home country, the Home Office will consider whether the care is reasonable for the applicant and of the required level for the applicant. This can include the psychological and emotional needs of elderly parents, for example. Such an approach could mean the difference in the outcome of an application for an adult dependent relative.

If BritCits pursues its challenge to the Supreme Court we will of course keep you informed.

Adult dependent relatives – judicial review challenge

General Election countdown: Immigration – what’s next?

What’s going to happen to immigration in a post-Brexit era? That’s the million dollar question. Whilst there has been huge speculation as to what our immigration system and net migration figures are likely to look like going forward, little clarity has been provided as yet.

Following the leak of the draft Labour Manifesto, it has been reported that Jeremy Corbyn has agreed to toughen up his message on immigration. The Labour Party has acknowledged that free movement of workers is unlikely to be possible once the UK leaves the EU, but has stated that imposing new immigration controls will not be top of its list of priorities if it wins the election. It’s not really clear where that message leaves us when trying to predict what the new model is going to look like.

The Conservatives have indicated that they will stick by pledges made in David Cameron’s 2010 manifesto to cut migration to “tens of thousands”, despite having missed the target after making the same promise in 2010 and 2015. Again, it’s not clear from their rhetoric so far how they hope to achieve this, although Prime Minister May has reiterated that when we leave the EU we will have the opportunity to make sure we have control of our borders.

UKIP has gone one step further, as it is prone to do, pledging to cut net migration levels to zero within five years by asking skilled workers and students to get visas and banning migration into the UK for unskilled and low skilled workers. This time it’s not clear how UKIP intend to do the maths to achieve a net migration level of zero.

And then there’s the Liberal Democrats who are against stricter migration controls. Details of the party’s policies on migration are yet to be revealed but Tim Farron recently tweeted that “immigration is a blessing and not a curse”.

General Election countdown: Immigration – what’s next?

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?

EEA – permanent residence applications

Applicants use Form EEA (PR) to apply for, replace or renew a document certifying permanent residence or a permanent residence card.

On 12 April 2017 the Home Office updated its guidance notes setting out information on what an applicant should send with their application. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/608088/Form-EEA-PR-guidance-notes-v3.pdf. The guidance notes now include a table of examples of people in different circumstances. This acts as a helpful guide for applicants thinking about the evidence they might need to provide specific to their own circumstances.

The documents and evidence sent must be originals. The Home Office makes an exception for online applicants who have their passports verified, copied and sent to the Home Office by a local authority participating in the European Passport Return Service. Official English translations provided by a qualified translator must be sent with all documents not in English or Welsh.

EEA – permanent residence applications