Will the UK's post-Brexit immigration system plans be derailed by COVID-19?

This article was first published by the International Bar Association (IBA) on 11 May 2020.

18 May 2020

The United Kingdom left the European Union on 31 January 2020. Pursuant to the Withdrawal Agreement, the UK and EU have agreed a transition period until 31 December 2020. During that time, EU citizens maintain free movement rights, which means they can continue to arrive, reside and work in the UK.

In order for EU citizens residing in the UK before 31 December 2020 to continue to stay, they are required to apply under the EU Settlement Scheme (EUSS). The EUSS was created through domestic legislation and is the vehicle through which EU citizens and their family members must apply to remain in the UK. The application process has proven itself to be fairly straightforward for most applicants, with the key criteria being whether the applicant has been residing in the UK for a continuous five-year period. If that is the case, settled status (indefinite leave to remain) will be granted. If not, pre-settled status (limited leave to remain) will be granted.

The EUSS is not a ‘one size fits all’ process. Since its inception, EU citizens have begun to realise that in some cases they must revert to the ‘old’ EU regulations and first regularise their status before being able to apply under the EUSS. For example, if an EU citizen is in an unmarried partner relationship with a third-country national, they first have to apply under the EU regulations for a Registration Certificate as a family member before applying under the EUSS. Assuming their EUSS application is successful, if they are granted settled status, the EU citizen could, after 12 months, then apply for British citizenship. If the EU citizen is granted pre-settled status this would be for five years and they can go on to apply for settled status.

In either case, EU citizens will be able to continue to reside in the UK for the long term. Those residing in the UK before 31 December 2020 will have to apply under the EUSS by the deadline of 30 June 2021.

EU citizens arriving in the UK for the first time after 1 January 2021 will be subject to new Immigration Rules. They will no longer be able to rely on free movement rights and will need to apply for a visa before being able to work in the UK. On 19 February 2020, the Home Office released a policy statement on the intended rules for EU citizens arriving in the UK from the start of 2021.

Within the policy statement, there are references, as expected, to a new points-based system for the UK. The UK has actually had a points-based system since 2008 and the new intended rules from the start of 2021 will largely be based on existing application categories.

In particular, for sponsored skilled workers, the Tier 2 category (which may be known by a different name under the new system) will continue to apply. The category is being made more relaxed for what is classed as ‘skilled’ roles so that more types of jobs will qualify. There are welcomed changes being suggested, such as the requirement in some circumstances for employers to pre-advertise the role and check that there are no resident workers able to undertake the role, and the monthly quotas are due to be abolished. As a result, non-EU citizens will find it easier to apply for a sponsored worker visa than they have done to date. This was probably not the UK government’s intention, given the frequent negativity around immigration and wanting to reduce migration to the UK. But conversely of course, EU citizens will have much more difficulty in applying for a visa before they come to work in the UK.

As a result, UK employers will find they need to give much more resources, time and money towards visa applications for EU citizens. Many UK employers will not be familiar with engaging in the UK immigration system if they have not generally been required to employ non-EU citizens. Equally, many employers, which will generally be small and medium-sized organisations, will this year be required to apply for a sponsor licence so that they are able to recruit skilled sponsored EU workers from the start of 2021. While the processing times for such sponsor licence applications are generally quite quick – completion is often within around four weeks – we expect those processing times to be delayed as more employers apply throughout 2020. An additional consideration will be cost. Current government fees for a non-EU citizen to be sponsored to work in the UK for five years would be approximately £7,500. This figure does not include the government sponsor licence fee which is normally an additional £1,476, although such a payment is only required every four years.

There is also the issue of compliance as all sponsor licence-holding employers are subject to an audit on a pre-arranged or unannounced basis. There is some degree of uncertainty in relation to the extent to which the Home Office will be able to visit all employers, as even to date it has struggled with the caseload. The indications are that the Home Office fully intends to continue with an environment of full compliance.

On any view, the UK government’s timeline for delivering these new Immigration Rules was always going to be tight. They have suggested recently that the new Immigration Rules will be available for employers to see from October 2020, ready for EU citizens and everyone else to use from 1 January 2021. This is an incredibly ambitious target, when the UK immigration system dates back almost 50 years, to 1971. An overhaul of such magnitude would take years, not several months as per the government’s timeline.

However, like all aspects of life at the moment, COVID-19 is inevitably having a huge impact on the UK immigration system and around the world. It is almost unavoidable that the Home Office will be required to apply its resources to working on new COVID-19-related guidance and its repercussions, and not the new rules to be applicable from the start of 2021. It therefore calls into question the ability of the government to deliver on its promise that EU free movement will cease from the end of 2020. As it stands now the UK government must request an extension to the transition period by 1 July 2020. Given this is in the next few months, we are at a standstill as to whether this is going to occur. Rather interestingly, voices from the EU are advocating an extension to the transition period as it is apparent that economically both sides are likely to suffer financial hardship. With an extension, even until the end of 2021, it would of course mean that free movement could continue, and sensibly would also allow more time for trade negotiations.

It also calls into question the ability of EU citizens to register their status before the deadline under the EU Settlement Scheme. While many EU citizens are able to apply online, some are required to attend in person and would be unable to do so in the current situation.

As UK employers await the new 2021 Immigration Rules, there would be an audible sigh of relief if the plans were delayed due to the COVID-19 outbreak.

Further information

If you have any questions about any of the issues covered in this blog, please contact Marcia or any member of our Immigration team.

This article first appeared on the website of the Immigration and Nationality Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.

About the author

Marcia  Longdon is a partner in our business immigration team. She has specialised in immigration, nationality and European law for over 20 years. She has a collaborative approach with the Home Office and government officials and is often invited to participate in consultations and round table discussions on changes to UK and European immigration.

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