Parliament Home Affairs Committee publishes report on post-Brexit movement of people.

London

Key Findings:

The Committee deals with the lack of detail about the Government's plans by suggesting that future immigration from the EU to the UK will be shaped by one of two broad scenarios: either, the UK immigration system will either give preferential treatment to EU27 citizens; or, treat them in the same way as people from third countries.

The report recommends that the Government be flexible.

“UK negotiators must recognise that any restrictions on EU citizens wishing to enter the UK may be matched by restrictions on UK workers in the EU.”

Although focused on the cultural sector, lessons on impacts for business and individuals can be extrapolated.

The Committee comments that the Government wishes to "take back control of the UK's borders by ending the free movement of persons. However, by the time of writing, it had provided little detail about what this would mean in practice.

If the UK treats EU citizens under the present ‘Third Country’ regime the Committee heard evidence from a wide range of organisations and quotes in their report:  “Witnesses were apprehensive about introducing movement with a job offer along the lines of the system that currently exists for third country nationals….short-term employment and job offers would be “highly problematic” and “intolerable … [for] small and medium-sized enterprises”.

Background

Following the UK’s decision to leave the European Union, the Government has stated its intention to end the free movement of persons between the UK and EU, thereby “taking back control of the UK’s borders”.

Government’s most recent pronouncement on free movement was set out in the White Paper [12 July 2018].  However, this gives little detail on what future migration arrangements might look like.

There are 2 key clauses in the White Paper:

Clause 1.4.1 - Ending free movement of people: “Free movement of people will end as the UK leaves the EU. The Immigration Bill will bring EU migration under UK law, enabling the UK to set out its future immigration system in domestic legislation … Further details of the UK’s future immigration system will be set out in due course.

“The UK’s future immigration arrangements will set out how those from the EU and elsewhere can apply to come and work in the UK.”

Clause 1.4.2 - Future mobility arrangement: “Any future mobility arrangements will be consistent with the ending of free movement, respecting the UK’s control of its borders and the Government’s objective to control and reduce net migration … Given the depth of the relationship and close ties between the peoples of the UK and the EU, the UK will make a sovereign choice in a defined number of areas to seek reciprocal mobility arrangements with the EU.

“The UK’s future economic partnership should therefore provide reciprocal arrangements, consistent with the ending of free movement, that: a) support businesses to provide services and to move their talented people [and] b) allow citizens to travel freely, without a visa, for tourism and temporary business activity.”

The free movement of persons throughout the EU 28 states is one of the ‘four freedoms’ that underpin the Single Market (along with free movement of goods, services and capital).

The legal basis for the right of free movement of persons is codified in the 2004 ‘Citizens’ Rights Directive’.  EU citizens and their family members may move and reside freely in EU Member States.  The Directive is complemented by rules covering social security coordination, guarantees of equality of treatment alongside citizens of the host Member State.

Citizens’ Rights Directive states that any EU citizen has a right to reside in another Member State if they are: a worker or self-employed person; a jobseeker; a student; self-sufficient; a temporary resident; a permanent resident (that is, they have lived legally and continuously in the Member State for at least five years; or a family member of someone with the right to reside.

If there is no reciprocal free movement (as in a ‘no-deal’ scenario), Third Country regulations will apply.  Third Country workers entering the UK are currently required to obtain one of 3 principal work visas.  These are: temporary workers (Tier 5); exceptional talent (Tier 1); and skilled workers (Tier 2 - General).

Tier 5 is for paid temporary work for up to 12 months, and requires a UK sponsor.  To act as a sponsor, a UK business must obtain a sponsor licence.  The Government has said that it will develop Codes of Practice for organisations and individuals using the Tier 5 visa scheme for non-EU workers, which “reflect the unique working needs and patterns” of these sectors.

Tier 1 is for individuals who are recognised as world leaders, or have demonstrated the potential to become world leaders, in the fields of science, engineering, humanities and the arts.  Applications for this route need the endorsement of a designated ‘Competent Body’, a cultural sector organisation selected by the Home Office to assess visa applications.

The Tier 2 (general) route allows UK employers to bring third country nationals to fill specific jobs.  Tier 2 (general) visas are capped at 20,700 annually and subject to pay thresholds.  

Tier 2 provides two pathways to a visa:  the resident labour market test (RLMT) and the shortage occupation list (SOL).

Jobs offered under the RLMT must first show that there is no suitable resident worker available, with the job being advertised to resident workers for a set period.  The job must also meet a minimum skill requirement and an annual salary threshold (with effect from April 2017, £30,000 p.a.).

Jobs on the SOL list are exempt from requirements to meet the RLMT and are subject to salary thresholds specific to each job (which can be lower than the RLMT threshold).

This Brexit Partners insight is a summary of the detailed research and findings that we deploy in advising organisations on analysing and quantifying Brexit impacts and mitigation strategies.  Human Resources is one of 5 business areas that we have modelled under the most likely outcomes of Brexit negotiations.  For more information or to discuss further contact us today.