Over the last four months or so, the ongoing negotiations on Citizens’ Rights have seen many twists and turns. On 8 December 2017, the EU/UK released a Joint Report on the UK’s “orderly withdrawal from the European Union”. The report laid out various points of agreement on Citizens’ Rights, including the need for EU nationals in the UK and British citizens in EU27 member states before 29 March 2019 to register for a temporary or, subject to eligibility, settled status after that date. Freedom of movement for those arriving before the cut-off date would be protected.
Whilst the Joint Report included the usual caveat that “nothing is agreed until everything is agreed”, it did provide a degree of certainty for UK employers in terms of EU nationals arriving in the UK before Brexit Day next March. However, the status of those EU nationals arriving during the transition/implementation period after March 2019 remained controversial.
The UK Home Office’s leaked paper on the future of its UK immigration policies of September 2017 (the official version was due in Autumn 2017 but is yet to be released) floated the idea of registration for around only 2 years for those EU nationals 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 expectation for those arriving before and after 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 negotiation position paper “Transitional 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 implementation period to coincide with the end of the EU budget year and so falling short of the UK’s plans for a two-year transition/implementation period.
Importantly, the EU’s paper also demanded that the status quo should be maintained during the implementation period including full freedom of movement, no new trade agreements with non-EU 27 and continued submission to the jurisdiction of the European Court of Justice without the UK having any legislative input in this period. In Brexiteer Jacob Rees Mogg’s words, making the UK “a vassal state”. The EU made it clear that Citizens’ Rights are “not negotiable” and that there cannot be “two sets of rights for EU citizens”, one for those arriving before and another after 29 March 2019.
Despite the UK’s strong previous position that it would set its own agenda, the UK’s own negotiation position 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 nationals to continue unabated during the implementation period. In fact, the only noticeable retort in the UK’s paper was a meek request for the December 2020 implementation 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 draft Withdrawal Agreement recently put to the EU 27 in March 2018, it has been agreed that the transitional period will only last from 29 March 2019 until 31 December 2020. Also, importantly and somewhat in contradiction to the UK’s previous position, those EU citizens who arrive in the UK as late as by 31 December 2020 (not Brexit Day on 29 March 2019) will continue to enjoy the same freedom of movement rights as those who arrived before Brexit.
Although the transitional period is 3 months short of the two-years that the UK was hoping for, UK employers of EU nationals (and European employers of British nationals) should have a degree of certainty in relation to the position of those workers arriving in the UK after 29 March 2019. The draft Withdrawal Agreement sets out that EU nationals will still be required to register under new immigration categories as someone with temporary or settled status. Of course, the position post-31 December 2020 is still under discussion and remains very unclear.
Whilst some mid-term post-Brexit rules on migration may have become clearer, there are already current signs of knock-on effects of Brexit on domestic immigration systems. In the UK, many Tier 2 (work permit scheme) sponsor employers will have been caught by surprise that the monthly quota has been continuously oversubscribed since December 2017. Previously, oversubscription was almost unheard of. If times gone by have been anything to go by, it would be expected that the level of applications will even out again, and oversubscription will be behind us. On the other hand, these are not ordinary times. With Brexit looming and recent Office for National Statistics showing there are already reductions in EU nationals arriving in the UK and more leaving, UK immigration policy is up in the air. The situation is compounded by the Immigration 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 long-awaited post-Brexit white paper on UK immigration policy and Immigration Bill have been delayed and, it is understood, are unlikely to be released until after the Brexit transition deal has been reached.
Tim Richards, Legal Director, Clyde & Co Contact Tim.firstname.lastname@example.org