UK Immigration Update – Home office Brexit plan leaked

September 7, 2017 All, UK
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UK Immigration Update – Home office Brexit plan leaked

Following the 26th June update whereby the government proposed to protect current UK resident EU nationals, there has since been a “leaked” Home Office document which, if credible, appears to…

Following the 26th June update whereby the government proposed to protect current UK resident EU nationals, there has since been a “leaked” Home Office document which, if credible, appears to detail the government’s latest position on the fate of free movement as Brexit looms.

Although it is important to note that this is only a draft proposal, which has been leaked, it is a clear statement to end free movement ‘in its current form’. The proposal is however keen to point out that any changes are subject to ongoing negotiations, the view of stakeholders, and the results of the Migration Advisory Committee report on the impact of changes in EU migration, expected in September 2018.

In it, the proposal asserts that further implementation of such changes will be without prejudice to the Common Travel Area arrangements between the UK and Ireland, and thus Irish nationals are seen to be excluded from these proposals.

 

It is proposed that change will be brought about in phases:

Phase 1

  • Protect the rights of EU nationals who became resident in the UK before the ‘specified date’, including the right to apply for settled status and having access to public services.
  • Non-EU family members are also expected to be protected in this way.
  • It is noted that the ‘specified date’ is still yet to be set – however, the government restates that the date will not be earlier than the date Article 50 was triggered or later than the UK’s EU-departure date.

Phase 2

  • Following Brexit, there will be a temporary ‘implementation period’ to give employers and individuals time to adjust to the new proposed system. This will possibly be the two year ‘grace period’ proposed earlier this year [https://www.theguardian.com/uk-news/2017/sep/05/the-draft-home-office-post-brexit-immigration-policy-document-in-full]. This will allow EU nationals already in the UK time to apply for residence documentation, after which such documentation will be mandatory.
  • In contrast, those who arrive during this ‘grace period’ may be able to benefit from free movement rights as we know them now, however if they wish to stay for a longer period (possibly over 3-6 months), they are likely to be required to register for permission to reside (including the taking of biometric information) and may face stricter family reunion rules.
  • Permission to reside is rumoured to be based on the individual being able to show they are a ‘qualified’ EU national, as per the relevant EU regulations currently in force, with the addition of a possible minimum income threshold and the abolition of ‘job seeker’ status. The longevity of the permission is yet to be decided, but could be two years initially and arrangements will be made to accommodate students whose courses end after the ‘implementation period’.  Following the ‘implementation period’ these individuals may have to meet the new UK immigration legal framework set out in phase 3
  • The leak also suggests that those who arrive to undertake highly skilled occupations during this ‘grace period’ may be eligible for a longer residence permit and possibly settlement in the UK after five years. However, non-EU family members may face stricter rules, with extended family members no longer being recognised, with the exception of unmarried (durable) partners, and derivative rights being abolished.
  • In contrast the proposal seeks to deny access to low-skilled occupations.
  • It is worth noting that employers will still be expected to carry out right to work checks and may face difficultly in confirming long-standing working rights when the ‘implementation’ period is underway. The government has indicated that they hope to introduce an online portal for employers to check an individual’s right to work and do not expect employers to re-check existing employees.
  • Similarly, EU nationals will need to ensure they do not work without permission, for fear of committing the newly established crime of illegal working.

Phase 3

  • Introducing the yet-to-be-established UK immigration legal framework to EU nationals arriving in the UK after the ‘specified date’. The earliest this legal framework would be brought in is the date the UK officially leaves the EU, and may not be the same rules as those applied to non-EU immigration.
  • The basis for this legal framework is the aim to reach ‘sustainable’ levels of net migration and promote the upskilling of the resident workforce. In practise, it will mean EU nationals will be subject to UK immigration rules as non-EU nationals are now, however there may be specific criteria for EU nationals which differ from the criteria used for non-EU nationals. The current Tier 5 (Youth Mobility) visa may also be adapted to include EU nationals who qualify. Also, importantly, the case law of the European Court will no longer apply, meaning that certain types of EU applications for non-EU family members will no longer be available.
  • In the hope that EU states will not make it difficult for UK nationals to enter EU counties, the UK proposes to:
  • continue to allow EU nationals to use electronic passport gates
  • allow visa ‘free’ entry for visitors and possibly extend this to other purposes in the future
  • EU nationals may be required to enter the UK using passports only, therefore unable to rely (as is currently permissible) on national ID cards, and could possibly face an electronic preclearance process before travel.
  • Additionally EU nationals may be refused entry upon the stricter criminality and public security grounds applied to non EU nationals now.

Again, it is worth reiterating that the above measures form part of a leaked document purporting to be a Home Office document, and therefore it should not be relied upon – however, in the current climate of heightened tensions between the UK and EU governments, and some apparent consistency with this year’s earlier official statements from the UK government on free movement, it will be very hard for affected individuals and businesses to simply ignore this leaked document.

 

If you have concerns about your status in the UK and those of family members, or your business is potentially affected by Brexit, please contact Ferguson Snell to see how we can assist you.

 

FSA -UK immigration udpate – brexit

If you would like further information on any part of this newsletter, please contact your dedicated Immigration Consultant via email on comms@fergusonsnell.co.uk or call us on +44 (0) 20 3668 2700.