Brexit is very much a live issue and is still scheduled to take place on 29 March 2019. The terms of the UK's departure from the EU are unclear but a few possibilities, in relation to immigration, are outlined below:
- the current draft Withdrawal Agreement is ratified by the UK and the EU. The UK will leave the EU at 11pm on 29 March 2019, although EU free movement laws will continue, in the interim, until 31 December 2020, or another date as agreed, during which the UK and the EU will negotiate the future relationship in terms of the draft Political Declaration. Individuals resident in the UK, under EU free movement laws, by 31 December 2020, or another date as agreed, will need to make an application under the EU Settlement Scheme by 30 June 2021, or another date as agreed, to be able to continue living in the UK lawfully. Certain individuals can currently make an application, while others will need to wait until 30 March 2019. The application will generally result in "pre-settled" status being granted, which is akin to leave to remain, if an individual has lived in the UK for less than 5 years continuously. Pre-settled status will only be valid for 5 years. Once an individual has lived in the UK for 5 years continuously, either under the EU Settlement Scheme and/or under current EU free movement laws, they will generally be granted "settled" status which is akin to indefinite leave to remain/ permanent residence
- if there is "no-deal" the
default position under the European Union (Withdrawal) Act 2018 is
that the UK leaves the EU at 11pm on 29 March 2019 without an
agreement, in which case
- EU laws will be converted into UK domestic laws
- EU free movement is likely to end as soon as possible (after 29 March 2019) – there is currently an Immigration Bill, which if approved, would allow this to happen
- Citizens from Iceland, Liechtenstein, and Norway and those from Switzerland, who are already resident by 29 March 2019, together with their family members, will also broadly have their rights preserved in the UK and vice versa, for British citizens and family members, in accordance with signed reciprocal agreements
- Individuals from the above countries and their family members who arrive after 29 March 2019 but before EU free movement ends will likely be able to apply for status under the EU Settlement Scheme (as above)
- Individuals from the above countries
who arrive after EU free movement ends, are unlikely to be eligible
to make an application under the EU Settlement Scheme. However, it
is likely that they will be able to stay in the UK for 3 months
without applying for a visa but will need to apply for "European Temporary Leave to Remain"
if they wish to stay for longer, and this is likely to be valid for
3 years. European Temporary Leave to Remain is not expected to
allow an individual to apply for indefinite leave to remain or
settled status, and they will likely need to apply for permission
to continue living in the UK under the future UK immigration
system. Family members (not from the above countries) will likely
need to apply for a family permit before they can come to the
The rights of Irish citizens in the UK will continue under the Common Travel Area ("CTA") arrangements, regardless of Brexit, although they and their family members can make an application under the EU Settlement Scheme, should they wish to do so. The CTA arrangements pre-date membership of the EU by both the UK and Ireland, and therefore British citizens can also live in Ireland. The CTA arrangements do not apply to non-Irish and/or non-British family members with the current uncertainty, as highlighted above, other options might transpire
Citizens from Iceland, Liechtenstein, Norway, and Switzerland (and their family members) will be able to apply to the EU Settlement Scheme from 30 March 2019, when the Scheme is expected to be fully operational.
Tier 1 UK visa Category
There are a number of changes expected in this category, some more sweeping than others including:
- Tier 1 (Entrepreneur) visa – this is due to be replaced by an "Innovator" visa
- Tier 1 (Graduate Entrepreneur) visa – this is due to be replaced by a "Start-Up" visa
It is expected that the replacement of the above visa categories, or at least the announcement of such changes, will be in Spring 2019, and will probably include business proposals being considered (or "sponsored") by businesses. Business proposals currently put forward in the above categories are generally considered by government officials and authorised universities.
In addition, the Tier 1 (Investor) visa category is likely to be reformed, reducing the options of what investments can be made, and requiring more robust evidence of funds, such as independent audits and showing control of funds for extended periods, as opposed to the current 90-day requirement.
Individuals who are currently in the above visa categories, are unlikely to be affected by future changes, and are likely to be able to complete their "visa route" and to become eligible to apply for settlement (e.g. indefinite leave to remain) in the UK, as was the case for previous visa routes which were subsequently closed to new applicants.
Tier 2 UK Sponsored Migrants
The Migration Advisory Committee (MAC) is expected to report in Spring 2019 on the composition of the shortage occupation list. The current list sets out jobs which are difficult to recruit for and allows businesses intending to sponsor migrants to bypass the onerous "resident labour market test" required for sponsorship under the Tier 2 (General) system.
Law Commission Report and Immigration White Paper
The UK immigration system is quite complex and has been criticised as being difficult to navigate around for judges and practitioners let alone for a lay-person. The Law Commission is expected to release its final report in the second half of 2019 which is likely to propose how the current rules can be made simpler and easier to access.
In addition, the Home Office published a White Paper in December 2018 which set out what the future UK immigration system for skilled migration is likely to look like and this will apply uniformly to non-EU citizens and EU citizens alike. The new UK immigration system is expected to incorporate the future findings of the Law Commission, and will come into effect in phases from late 2020. Over the next 12 months, the Home Office will engage with stakeholders to develop the new system.
Sponsored Workers and Sponsoring Employers
The White Paper sets out the following proposals for sponsored workers, and sponsoring employers:
- the Home Office will scrap the current annual limit of 20,700, the maximum number that applies to most Tier 2 (General) sponsored migrants
- the current "resident labour market test", which most Tier 2 sponsor licence holders will be familiar with, will be scrapped in the new immigration system
- the Home Office will review the administrative burden of the current sponsor licence system, and may introduce a "tiered" system of sponsorship
- the new system will be widened to include jobs skilled at A level or equivalent (the current system generally requires jobs to be skilled at graduate level or above), though not for migrants coming on the Tier 2 (Intra-company Transfer) route
- the current minimum salary requirement of £30,000 will be put to consultation, and it is expected that stakeholders will continue pushing for the reduction of this figure
- there is scope for "lower" skilled workers, from certain countries, being able to work in the UK on a temporary basis for up to 12 months on a transitional basis, until around 2025, to allow UK employers to adapt to the loss of access to the EU labour market. These workers would then be subject to a 12 month "cooling-off" period
Broadly speaking, there will be no change to the student route, though the Home Office intends that under the new immigration system, successful undergraduate migrants will be able to stay in the UK for 6 months after completing their studies - presumably to obtain gainful employment.
There are also other proposed changes such as requiring prior digital authorisation before individuals come to the UK, similar to the "ESTA" system adopted by the USA, and making more favourable immigration provisions specific to certain nationalities, depending on trade deal agreements.
As detailed above, there are many expected changes to the UK immigration system this year and in the future, and we will provide further updates as these are made available by the UK Government.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.