January 31, 2020

Across the Brexit Finish Line – And Now What?


At times it felt like we would never cross the Brexit finish line, but we’ve done it.” – Prime Minister Boris Johnson

The dramatic June 2016 referendum in the United Kingdom in which 51.9 percent voted to leave the European Union initiated a long and arduous journey with multiple elections, extensions, and cliffhangers. On  January 31, 2020, at 11 p.m. GMT, the Brexit “finish line” will be crossed, concluding the process that was triggered when, in March 2017, the UK government invoked Article 50 and initiated the withdrawal procedure. Britain’s Parliament has now ratified a Withdrawal Agreement with the EU via the European Union (Withdrawal Agreement) Act 2020. The European Parliament, in turn, voted to approve the agreement on January 29. This means that all of the formal ratification procedures have now been completed.

But even with the divorce agreed, the UK and EU still face negotiation of the terms of their future relationship. A transition (implementation) phase will occur in the interim, lasting until  December 31, 2020 (or longer, if the UK government exercises its one-time right in July 2020 to extend the transition for two years). Negotiations during the transition need to cover an enormous range of issues, including trade, customs, and regulatory alignment (or nonalignment). This includes a new legal framework for immigration control after January 2021, when the transition period is set to end.

Will freedom of movement and EU citizens’ rights remain unimpaired during the transition phase?

As the UK will no longer be a member state of the European Union as of  February 1, 2020, the rights of free movement emanating from the EU treaties will no longer apply. The Withdrawal Agreement itself, however, provides for the equivalent of free movement—it enables EU citizens in the UK and UK citizens in the EU to travel, work, and reside across member states in precisely the same way as before. There will be no new immigration controls, criteria, or visa requirements prior to  January 1, 2021.

The status quo accordingly will be maintained for entry to the UK, and the right of free movement for EU nationals will continue, throughout 2020. British citizens will also continue to benefit from freedom of movement across EU27 throughout 2020.

How long will the UK accept applications by EU citizens for settled (or pre-settled) status?

EU citizens entering on or before  December 31, 2020 will be eligible to apply under the UK government’s EU Settlement Scheme (“EUSS”), provided they submit their online application by  June 30, 2021. Applications under the EUSS are already in progress for EU citizens who are already in the UK, through the online EUSS system. In summary, the EUSS provides for the following:

  • EU citizens entering the UK prior to the end of December 2020 will be eligible to apply under the scheme.
  • EU citizens who have resided in the UK for a five-year period can obtain “settled status” (Indefinite Leave to Remain).
  • EU citizens who have resided in the UK for less than five years can obtain “pre-settled status” (Limited Leave to Remain) and will be eligible for settled status once they have completed five years’ continuous residence.
  • Qualifying EU citizens will have until 30 June 2021 to apply under the scheme.

What changes to the immigration scheme is the UK government considering?

The UK government will introduce a new immigration scheme following the Brexit transition phase. The Johnson government has indicated interest in an Australian-style Points-Based System (“PBS”), which ranks candidates according to points aligning with criteria the government favors (such as age, skills or experience, and education).

The Migration Advisory Committee (“MAC”), a non-departmental public body associated with the British Home Office, published its 278-page report on  January 28, 2020, regarding salary thresholds and the design of a PBS scheme for skilled migrants. The report is an addendum to the work the MAC completed in 2018 to provide recommendations for a post-Brexit immigration scheme. As the MAC is a purely advisory body, UK ministers ultimately will determine the policy objectives and legal mechanisms that will govern a new framework after the Brexit transition phase.

The May government previously commissioned the MAC to review the mechanisms for calculating future salary thresholds for employer sponsorship of foreign workers. In September 2019, the Johnson government issued a supplementary instruction to the MAC to request its consideration of the characteristics and attributes to be included in a PBS scheme.

The MAC recommendations include the following key provisions for workers with a job offer:

  • Keeping the current Tier 2 (General) category for skilled workers with a job offer, requiring a combination of skills and a minimum salary threshold but abandoning the current Resident Labour Market Test and limits on new entrants;
  • Expanding the definition of “new entrants” to include those who are working toward recognized professional qualifications and those who are moving into postdoctoral positions, in addition to those under the age of 26 or converting from a student visa;
  • Retaining a general salary threshold but reducing it to £25,600 (versus the current £30,000) for “experienced workers” and to £17,920 (versus the current £20,800) for new entrants on a unified national (as opposed to regional) basis;
  • Rejecting inclusion of additional forms of compensation—such as allowances, bonuses, pensions, or equity (including for items that can currently be included)—to meet the salary threshold; and
  • Prohibiting pro rata adjustment of the applicable salary threshold for part-time workers other than in a newly proposed exception for leave holders planning to undertake part-time work when they become new parents.

With regard to workers without a job offer, the MAC recommendations include:

  • Modifying the Tier 1 (Exceptional Talent) category to a points-based assessment focusing on criteria such as age, education, UK experience, and specialized skills, including, for example, science, technology, engineering, and math (“STEM”) skills; and
  • Providing monthly allocations of visas derived from an annual limit on numbers, with the highest-scoring applicants awarded a visa and others waiting for subsequent months.

With regard to the programs for settled status, the MAC recommendations include:

  • Deferring any proposed increase to the settlement salary threshold to permit a full review and potential introduction of a more flexible system for granting settlement;
  • Considering a separate salary threshold for Northern Ireland; and
  • Considering launch of a pilot visa to attract foreign talent to “remote” areas.

What comes next?

The Home Office (Ministry of Internal Affairs) is expected to publish a white paper in March 2020 with policy guidelines, which will shape upcoming legislative proposals on the UK immigration system. Absent an extension of the transition period, the legislation must be drafted, approved, and enacted by January 1, 2021.

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