It has been a busy and uncertain 24 hours in politics and what appears below is the text of my commentary in the media yesterday, following confirmation that Teresa May had negotiated a transition deal and was putting it to her cabinet. In the last 12 hours I have had the chance to read (quickly!) the 500-page negotiated draft Withdrawal Agreement. The document is a huge step forward in what is a difficult situation for any leader or Government in trying to please all sides of the division. The document in my view makes it clear that transition and the backstop are not intended to be a permanent solution but sets the scene for a future deal and gives some certainty to businesses, is a step towards frictionless trade and the first steps to avoid the perils of a no deal and the years of unravelling that would cause.
My expertise is UK immigration law and policy. This is what I will focus on in the remaining part of this article. When reading the Withdrawal Agreement, it is clear that negotiators had the outcome of the Brexit referendum result in mind which was primarily based on two factors. Immigration, taking back control of our borders and secondly taking back control of our laws. The document achieves this.
Deal or no deal, the Government has given certainty as to the position of EU Nationals currently residing and working in the UK; and a degree of certainty as to how future immigration law and policy will be framed.
Therefore, whilst there remains uncertainty in respect of trade, customs etc. business should however be in a better position to plan to protect their existing EU workforce and consider their strategy in terms of meeting future labour shortages once the UK leaves the EU.
EU Nationals who are already here or continue to arrive in the UK up until 31 December 2020 (end of the transition period) will be entitled to apply up until June 2021 for settled status if they have been in the UK for 5 years by the time they apply, or pre-settled status if they have been here for less than 5 years allowing them to upgrade to settled status later.
This scheme will benefit 3m EU Nationals currently in the UK but it is important that employers keep an eye on when the scheme is opened up to their EU colleagues, encourage them to apply and once the colleague receives their new digital status document to obtain a copy of this status to confirm their continued right to work in the UK. By 28 November the scheme will have opened to colleagues working in higher education institutions, NHS and other related health and social care professions and then the scheme will be open to all by April 2019.
The Home Secretary confirmed at the Conservative Party conference that after the end of the transition period free movement for European Nationals will end. It would appear that little research has been carried out by the Government on the impact this will have to businesses that depend on skilled and unskilled workers from Europe. However, past experience dictates that successive Governments have not been able to get a handle of migration to the UK and therefore any Government that can finally promise the end of free movement will be hoping to have the support of the electorate at large.
Whilst we are waiting for the much-anticipated Government Whitepaper on the future of immigration law and policy, what we can be certain of is that the Rules will be a skills-based, single system for EU and non-EU Nationals meaning that EU Nationals and their employers will have to satisfy the requirements of the existing Tiers of the points-based system for skilled EU workers to work in the UK. This will further mean that businesses that depend on workers from the EU will need to register as sponsors with the Home Office.
The Government is likely to follow the recommendation of the Migration Advisory Committee that there should not be any special schemes or provision for low skilled workers from the EU. The Government instead will be encouraging businesses to align with their industrial strategy and to automate these processes, to increase wages and train UK workers for these jobs. Whilst this is commendable the concern I have is that these initiatives will not alleviate the immediate short-term pressures that businesses will face in recruitment and nor am I convinced that the Government have a handle on the longer-term pressures of an ageing population which will require hundreds of thousands of jobs to be filled in the coming decades.
The Government is however introducing a pilot seasonal workers scheme for 2 years next March, which will allow 2500 workers from outside the EU to work in the UK for up to 6 months to fill labour shortages during peak production periods. My view is that the Government may be forced to consider similar schemes when shortages become apparent in other sectors such as hospitality and care workers in nursing homes if there is enough pressure from industry to do so. It is important that businesses continue to have a dialogue with Government in order to shape future immigration laws which work for UK PLC.
With both the UK and EU committing to citizens rights of those EU nationals already settled in the UK and UK nationals settled in the 27 EU Member States the Withdrawal Agreement sets out that British Nationals will not require visas to travel for short stays to the 22 EU member counties that are members of the Schengen area and four Schengen- associated states. It will also apply to Romania, Bulgaria, Croatia and Cyprus. Short stays have been defined as up to 90 days in any 180-day period. This is likely to include travellers for the purpose of business visits, leisure and family visits but not for work.
There is at this stage uncertainty as to whether British travellers will need to apply for electronic travel authorisation (Etias – the EU Travel Information and Authorisation System) which is modelled on the US ESTA and is being introduced by the EU for security grounds for all countries outside the bloc, even if they are visa-exempt. However, what is clear is that the European Health Insurance Card will no longer give British citizens rights to reciprocal healthcare meaning that arrangements should be made for travel insurance.
The UK Government has also declared its intention of EU 27 Member State Citizens not requiring visas for short stay visits (likely to be 6 months as is the case currently with non-EU Nationals) for the purposes of leisure and business.
All is still up for negotiation but that said, short of us deciding to stay in the EU this is the shape of the UK immigration policy – deal or no deal.