period a er March 2019 remained controversial. The UK Home Office’s leaked paper on the future of its UK immigra on policies of September 2017 (the official version was due in Autumn 2017 but is yet to be released) floated the idea of registra on for around only 2 years for those EU na onals filling lower skilled roles and those filling higher skilled being able to stay longer for say up to 5 years. This would have been a stark change from the current largely unrestricted freedom of movement. The UK was adamant that there must be a different expecta on for those arriving before and a er the UK’s exit from the EU. As recently as Theresa May’s trip to
China at the start of February, she was very clear on this point. However, on 7 February 2018, the EU released its latest nego a on posi on paper “Transi onal arrangements in the withdrawal agreement”. This paper included reference to the EU’s wish for 31 December 2020 to be the end date of the implementaon period to coincide with the end of the EU budget year and so falling short of the UK’s plans for a two-year transi on/implementa on period. Importantly, the EU’s paper also demanded that the status quo should be maintained during the implementaon period including full freedom of movement, no new trade agreements with non-EU 27 and con nued submission to the jurisdic on of the European Court of Jus ce without the UK having any legisla ve input in this period. In Brexiteer Jacob Rees Mogg’s words, making the UK “a vassal state”. The EU made it clear that Ci zens’ Rights are “not nego able” and that there cannot be “two sets of rights for EU ci zens”, one for those arriving before and another a er 29 March 2019. Despite the UK’s strong previous posi on that it would set its own agenda, the UK’s own nego a on posi on paper (proposing amendments for discussion to the EU’s own paper) of 21 February 2018 was conspicuous by the absence of any meaningful ‘pushback’ on the EU’s demands for freedom of movement of EU na onals to con nue unabated during the implementa on period. In fact, the only no ceable retort in the UK’s paper was a meek request for the December 2020 implementa on period end date to be discussed in view of whether it is long enough given the UK has always been planning for two years from March 2019. As a final nail in the coffin, based on the dra Withdrawal Agreement recently put to the EU 27 in March 2018, it has been agreed that the transi onal period will only last from 29 March 2019 un l 31 December 2020. Also, importantly and somewhat in contradic on to the UK’s previous posi on, those EU ci zens who arrive in the UK as late as by 31 December 2020 (not Brexit Day on 29 March 2019) will con nue to
enjoy the same freedom of movement rights as those who arrived before Brexit. Although the transi onal period is 3 months short of the two-years that the UK was hoping for, UK employers of EU na onals (and European employers of Bri sh na onals) should have a degree of certainty in rela on to the posi on of those workers arriving in the UK a er 29 March 2019. The dra Withdrawal Agreement sets out that EU na onals will s ll be required to register under new immigra on categories as someone with temporary or se led status. Of course, the posi on post-31 December 2020 is s ll under discussion and remains very unclear. Whilst some mid-term post-Brexit rules on migra on may have become clearer, there are already current signs of knock-on effects of Brexit on domes c immigra on systems. In the UK, many Tier 2 (work permit scheme) sponsor employers will have been caught by surprise that the monthly quota has been con nuously oversubscribed since December 2017. Previously, oversubscrip on was almost unheard of. If mes gone by have been anything to go by, it would be expected that the level of applica ons will even out again, and oversubscrip on will be behind us. On the other hand, these are not ordinary mes. With Brexit looming and recent Office for Na onal Sta s cs showing there are already reduc ons in EU na onals arriving in the UK and more leaving, UK immigra on policy is up in the air. The situa on is compounded by the Immigra on Minister recently being unable to rule out UK visas being offered as part of new trade deals with non-EU countries, such as the US, India and Australia. Given all that, it is no surprise the longawaited post-Brexit white paper on UK immigra on policy and Immigra on Bill have been delayed and, it is understood, are unlikely to be released un l a er the Brexit transion deal has been reached. Tim Richards, Legal Director, Clyde & Co m.richards@clydeco.com europeanbusinessmagazine.com 23