How Brexit Would Change UK Immigration Laws

 

By Simon McMenemy
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"Brexit": The word—if it is a word—is one that many in the United Kingdom (U.K.) are tired of hearing. And yet it is difficult to concentrate on anything else, despite parliament's March 14 vote approving Brexit's delay. European Union (EU) member nations also must approve the delay; without their approval, the U.K. still could leave the EU on March 29 without a deal on trade and immigration.

What will Brexit mean for HR professionals, should it occur? Employment laws and employee-related data-privacy issues in the U.K. likely will not be affected much. But some changes, mostly in immigration, will occur should the U.K. depart from the EU.

Background

On March 30, 2017, the U.K. government gave the required two years' notice of departure from the EU, meaning that, subject to further developments, the departure (nicknamed "Brexit") will happen March 29, now just days away.

However, there is still a possibility that Brexit may not occur. In the last days of February, Prime Minister Theresa May, still struggling to reach a deal with her own party and parliament, let alone the other 27 EU countries, raised the possibility of delaying the withdrawal deadline—a possibility that parliament recently adopted. Any such request must have the agreement of the other 27 EU member nations, which is not guaranteed.

The U.K.'s other option is to withdraw its request to leave the EU. It could then resubmit the notice at a later date.

On March 13, the members of parliament voted down a no-deal Brexit. A "no-deal" Brexit means the U.K. would leave the EU without trade and immigration agreements with EU member nations. If Brexit happens at all, a transition period during which most EU laws will continue to apply to the U.K. is likely.

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Immigration

How Brexit will affect immigration is perhaps the most prominent public-policy question resulting from the possible withdrawal. The ongoing rights of EU citizens in the U.K.—and the reciprocal rights of British citizens in the EU—has been one of the key issues during the withdrawal negotiations.

If or when there is a withdrawal deal, there will likely be an implementation period ending no earlier than December 2020. During this period, free movement will continue between the U.K. and the EU, unless EU nationals intend to stay in the U.K. for longer than three months, in which case they will need to register with the U.K. government. Then they can apply for "presettled" status, which will enable them to take initial steps to obtain permanent residency.

EU citizens who have lived in the U.K. lawfully for five years will be able to apply to stay indefinitely under the new EU Settlement Scheme. This means that they will be free to live in the U.K., have access to public funds and be able to apply for British citizenship. EU citizens will need to apply under the scheme, even if they already have permanent-residence documents; they will not automatically get indefinite permission to stay.

Similar reciprocal rights would be conferred upon British nationals residing in the EU before the end of the implementation period.

The EU Settlement Scheme will be an online application process accessible from any device that has Internet access, and it will be free of charge. People who don't acquire settled status will be removed from the country.

Irish citizens will not need to apply for settled status in the U.K.

The U.K. government's white paper on future immigration policy was published Dec. 19, 2018. Key proposals include:

  • No cap on the number of skilled workers from the EU, such as doctors or engineers.
  • A minimum salary requirement, imposed by the U.K. government, of £30,000 (approximately U.S. $39,448) for skilled migrants seeking five-year visas.
  • No visa requirement for visitors from the EU.

Although a significant proportion of U.K. employment law is derived from the EU, it is unlikely that there will be wholesale changes following Brexit. But the government may amend some less-popular areas of employment law to reduce the regulatory burden on employers, including:

  • Introducing a cap on compensation for discrimination, such as for unfair dismissal.
  • Amending TUPE (Transfer of Undertakings Protection of Employment) regulations, which are rules protecting employment rights on a business transfer, to make them more business-friendly.
  • Addressing whether employees accrue vacation time while off sick.
  • Removing the 48-hour maximum weekly working hours.

Data Protection

The U.K.'s Data Protection Act 2018, which largely mirrors the General Data Protection Regulation (GDPR), will likely remain in place.

Despite the U.K. having GDPR in place, it's unclear if the U.K. would still be covered by the right to transfer data. If not, the U.K. would have to obtain "adequate" status, as have Canada, Japan and other non-EU countries. The European Commission has stated that there can be no decision on adequacy until the U.K. is out of the EU.

Following Brexit, employers in the U.S. who rely on the EU-U.S. Privacy Shield to export personal data from the U.K. to the U.S. would need to follow Fair Trade Commission and U.K. guidance to make any necessary changes.

Simon McMenemy is an attorney with Ogletree Deakins in London.

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