Immigration Overview – Chambers
Bates Wells Immigration
Never has there been such turmoil in government.
Never has there been such uncertainty in the world about the future of immigration control. Currently this is primarily being played out in the UK in the context of Brexit following the referendum result of 2016. The government’s failure so far to deliver a “deal” on Brexit which commands majority support may have hinged on non-immigration concerns (Ireland and trade). Behind that though has been the expressed desire of those who campaigned to Leave to “regain control of our borders”. Freedom of movement, and its erasure or conversely its preservation, has been a fault line throughout the last 3 years of political and legal debate.Much of our sector’s attention has therefore rightly been focussed on securing the rights of EEA citizens and those of their family members, and holding Government to account on the efficacy of its pre-settled and settled status schemes. In doing so, we have had to manage understandably high levels of anxiety on the part of our clients: businesses, organisations and individuals. That story is far from complete. Many of our clients are counting the potential and actual cost of “regaining control” of our borders given the dependency of many sectors such as healthcare, agriculture and hospitality on the supply of labour from the EEA. These sectors respectively employ as part of their workforces 2.5%, 5.5% and 10% EEA nationals. In the circumstances where EEA labour is so vital, this begs the question of, what next to ensure a preservation of services in these areas.
The domestic debate has focussed on trying to secure support for a withdrawal agreement, with a transition period permitting continued use of EEA labour until December 2020 or later, or (in the event of a no deal) the envisaged granting of temporary leave to remain for 3 years after 31 December 2020. These are inherently short-term solutions. The UK’s government’s mantra is that freedom of movement ends when the UK leaves the EU. The shape of what is to come, assuming the UK does leave the EU, is however, far from clear. Matters have been subcontracted for the consideration of the Migration Advisory Committee. What is clear is that the UK will need an overhauled and new immigration system. There is frequent (but not well articulated) mention of an “Australian style Points Based System”. Those of us with not such long memories recall that the UK has had something looking like an Australian style Points Based System before in the shape of the Highly Skilled Migrant Programme, (later Tier 1 (General)) which was scrapped arguably because it was too “successful” in attracting large numbers of skilled migrants to enter the labour force thereby negatively affecting our net migration statistics. The MAC is due to report by January 2020. The framework they are being asked to report within: less or more migrants, what kind of migrants, is shaped by the Brexit debate, and the needs of the UK’s economy. However it will be a long time before there will be any certainty in the immigration marketplace.
Brexit is not the only prism through which practitioners experience the turmoil our clients face. A question hangs over the UK’s “hostile environment”, designed to deliver on driving down numbers of migrants, and itself the subject of intense scrutiny not least due to the palpable consequences felt by the Windrush Generation. Both corporate and personal immigration practitioners find themselves advising on the impact of the delegation of immigration enforcement mechanisms to an array of stakeholders: employers, landlords, education providers being the key groups, as well as of course to the individual workers, the self-employed and entrepreneurial, students and family members.
For now, and arguably as always, immigration practitioners need to be creative, problem solving and lateral in their approach. We have to find solutions from the rules as they are, and the schemes that already exist.
For example: when advising the aspirant self-employed migrant, Tier 2 work permissions can be used flexibly to permit self-employed contractors to undertake time limited jobs as Intra Company Transferees. Whereas Tier 1 currently offers business people very little room for manoeuvre until the full implementation of the programme of endorsements of start-up and innovative business ideas. These were designed to replace the Entrepreneur category but are not currently effectively functioning, as the bodies which were designated to endorse them are not yet fully engaged.
Our role as problem solvers was ever thus, and we will always need to undertake a close examination of migrants’ personal circumstances to unpick apparently impenetrable legal problems.
The rules governing the position of family members of British nationals and settled persons have remained stable since 2012. It remains to be seen whether these will be fit for purpose for settled EEA nationals, and as to how ancillary rights such as the right to work will play out post Brexit.
To conclude: are we on the cusp of an opportunity to overhaul UK immigration law, or something much less satisfactory?
Immigration work force planning needs realistic solutions which benefit both employers and employees, and any post Brexit political and legal settlement needs to rise to those challenges.