UK Immigration: the situation post-Brexit

Published 07 March 2019 by Ellisons Solicitors incorporating Gross & Co.

A no-deal Brexit is likely to affect the immigration position of the European Economic Area (EEA) nationals arriving in the UK after Brexit.

Despite this, the UK Government has confirmed that all EEA nationals living and exercising Treaty rights in the UK on the 29th March 2019 will be able to apply under the EU Settlement Schemes to continue living in the UK.

If an applicant can prove that he/she has lived in the UK exercising EEA Treaty rights for at least five years, the applicant will be granted settled status as a permanent resident. If not, the applicant will be granted pre-settlement status with the right to apply for settled status after completing five years of qualifying residence, including the time before the making of the pre-settlement application. These schemes are due to come into effect by the 30th March 2019.

Currently, it is still possible to apply for an old style EEA Permanent Residence Card or Residence Card. However, in most cases, it will be sensible to wait for the new schemes to come into effect unless the applicant is wishing to pursue an application for British citizenship as soon as possible. In such cases, an application for an EEA Permanent Residence Card may still be advisable.

At the same time as clarifying the position of EEA nationals in the UK, the Government has set out its proposals for a new UK immigration system from 2021. The proposals have a number of advantages and disadvantages compared to the current system. The most fundamental proposal is that all EEA nationals will be subject to the same rules as any other foreign national.

Looking at the positive aspect of the proposals, the current Tier 2 scheme for sponsored workers will be expanded and refined in two important ways. Firstly, it will be possible for Tier 2 visas to be obtained for positions coming within the ambit of the Regulated Qualifications Framework (RQF) Level 3 positions upwards. Currently, the minimum level other than for shortage occupations is RQF Level 6. This means that a substantially increased number of occupations will be potentially eligible for Tier 2 sponsorship. In addition, the Government is proposing that the current resident labour test which applies to many Tier 2 applications will be removed.

On the negative side, it is believed that the Prime Minister wishes to introduce a minimum annual salary figure for Tier 2 visas of £30,000, meaning that many positions, including nurses, would be unlikely to qualify. However, as a result of what we understand was a Cabinet disagreement, the minimum salary level for Tier 2 applications has been put out to consultation.

The Government also proposes to bring in a scheme of temporary one-year visas for low skilled workers, from certain countries which are described as low-risk immigration countries. The intention, therefore, is that many of the positions currently held by Europeans in the hospitality industry will be filled by the new low-skilled worker category, which is almost certain to cover all EEA countries but also covers other countries such as the USA, Canada, Australia and New Zealand, among others. However, such a temporary worker will have to leave the UK at the end of one year and cannot return under this visa category for at least a year. It is going to be very interesting to see how attractive this visa category is to UK employers wishing to employ staff on a long term basis in low-skilled positions, and also how attractive the scheme will be for foreign nationals.

The industry has reacted positively to some of the changes, but with particular concerns expressed about the possible minimum £30,000 per year salary threshold for Tier 2 certificates, and also the possible restrictions of the low-skilled workers' scheme. It is also clear that these proposals are likely to be altered over the next two years, particularly if there is a change in Prime Minister.

Graeme Kirk, the senior partner of Gross & Co and Head of its Immigration Department, has specialised in UK immigration law for 38 years and he and his team will be pleased to help the UK and foreign businesses and individuals with all advice and assistance.