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Immigration briefing papers

 

 

 

 

 

 

 

This week saw the publication of two briefing papers—one by Bernard Ryan, Professor of Migration Law at the University of Leicester (for the Immigration Law Practitioners Association (ILPA); and the other by the Institute of Public Policy Research (IPPR)—that make significant contributions to the ongoing conversation on immigration policy, particularly in light of the inevitable changes due to Brexit.

The ILPA briefing paper, “Who will remain after Brexit? Ensuring protection for all persons resident under EU law,” identifies gaps concerning both EU citizens and third-country nationals who, potentially, will be negatively impacted by Brexit as they are not included in the government’s current thinking. These groups include, for example:

  • EU citizens and family members resident outside the UK at the point of Brexit who have a history of residence in the UK and may need or desire to resume residence in the UK in the future; and
  • EU nationals whose primary residence is outside of the UK but who, for either business/work or personal reasons, have a second place of residence in the UK. Post Brexit, these individuals may fail the required residency requirements to obtain residence or settled status, given their high absences from the UK, and instead be treated as visitors to the UK, a status that would obviously not permit them to work in the UK.

A summary of the paper, together with the full version, is available here.

The IPPR paper, “An immigration strategy for the UK: Six proposals to manage migration for economic success,” addresses the need to link immigration with the strategic priorities of the UK, particularly economic ones, in a post-Brexit world, and to understand the role that immigration plays in meeting these. The six proposals referred to in the title are:

This paper serves to remind us of the enormous challenge facing policymakers as they seek to ensure that all affected parties are captured in their thinking and that adequate protections are included in both the withdrawal agreement and future UK immigration legislation.

  1. Immigration strategy should clearly differentiate between types of immigration.
  2. Immigration strategy should actively address geographical imbalances in the economy.
  3. Immigration strategy should be designed to spur innovation.
  4. Immigration strategy should forge a new compact between employers and government, as a means to achieving a high-pay, high-productivity economy.
  5. Immigration strategy should support the UK’s trade balance.
  6. Immigration strategy should promote equality and integration.

In the lead-up to what will inevitably be an overhaul of the immigration system due to Brexit, the IPPR paper reminds us of the opportunity this brings, and the need to be active in the ongoing immigration debate.

The full report is available to download at the IPPR website. (The four-page summary is well worth a read.)

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Immigration briefing papers

Cooking up a storm: Tier 2 chefs

 
 
 
  
 
 
       
 
 
 
 
 

UK immigration rules make a distinction between chefs working in takeaway establishments and those working in restaurants.

If the job requires five or more years of relevant experience in a role of at least equivalent status to the one in which the visa applicant is proposing to start, and the job is neither a fast food outlet, standard fare outlet or takeaway outlet, then the position will fall under the chef roles on the Tier 2 Shortage Occupation List.

This has recently been the subject of High Court cases in which chefs argued that it’s arbitrary and unreasonable to exclude from the Shortage Occupation List those working at restaurants that provide high-quality cuisine just because the establishment also, incidentally, happens to offer takeaway service. The chefs argued that all skilled chef roles should be on the Shortage Occupation List, and that the focus should be on the nature of the establishment rather than the fact that it incidentally provides takeaway food.

The Secretary of State argued otherwise and the court agreed, finding that the exclusion of jobs in takeaway, fast food and standard fare outlets from the Shortage Occupation List was justified. The court based its decision on evidence provided by the government that takeaway establishments were generally not associated with the kind of cuisine requiring highly skilled chefs.

In view of the rise in the number of gig economy delivery drivers delivering takeaway orders from fine-dining establishments, this is surely an issue that will rumble on.

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Cooking up a storm: Tier 2 chefs

UK government updates on Settled Status

The UK government has published further details on how the new settled status scheme for EU citizens and their family members will work as the UK leaves the EU. In the technical document sent to the European Commission, the government has pledged that this new system will be streamlined, low-cost and user-friendly, and will be designed with input from EU citizens.

EU citizens will have up to two years following the UK’s exit from the EU to apply to stay in the UK and obtain settled status. Applications will be decided based solely on the criteria set out in the Withdrawal Agreement and there will be no discretion for refusal based on other reasons. The criteria are not, as yet, conclusive. However, the government has confirmed that they will be simple, transparent and will minimize the need for documentary evidence. Unsuccessful applicants will have a statutory right of appeal in line with current rights provided by the Free Movement Directive.

There are also plans to set up a voluntary application process to provide those currently residing in the UK with the option to get new settled status at their earliest convenience—a recognition of the administrative challenge of granting status to potentially over three million EU citizens and their families.

Negotiations between the UK and EU are ongoing.

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UK government updates on Settled Status

Scotland: A separate system for global mobility?

The Times has revealed plans by Scottish ministers to pave the way for a bespoke immigration system.

Scottish ministers are concerned that Brexit will lead to a fall in immigrant workers, who are vital to the Scottish economy. Alasdair Allan, the Scottish government’s Europe minister, raised this as an issue to the Europe Committee earlier this year. “The Scottish government,” he said, “will continue to call for a less restrictive and more humane system from the UK which recognises individual and demographic circumstances.”

Scottish ministers plan to present to the UK government next summer an “options paper” that will set out some concessions from the UK immigration system. The most far-reaching of the requested options could be Scotland having its own, points-based immigration system with Holyrood in control. At the other end of the spectrum, the Scottish government may simply look to expand the Scotland Shortage Occupation List or reintroduce a post-study work route to give foreign graduates the chance to stay in Scotland to find work. The Shortage Occupation List contains occupations the country has trouble filling from inside Scotland. Concessions are made to the usual immigration process to bring in workers for these roles from outside the EU.

We will bring you more details as they are disclosed.

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Scotland: A separate system for global mobility?

Safeguarding the status of EU citizens: UK and EU negotiation update

 

 

 

 

 

 

The EU and UK have concluded their fifth round of negotiations.

Progress has been made on coming to an agreement in relation to the rights of EU citizens living in the UK. Some points are still to be negotiated.

The UK has confirmed that its “settled status” scheme, to be introduced next year, will be streamlined, digital and low-cost. For EU citizens who have permanent residence documents, the process of updating their status to “settled status” will be more straightforward. There may not be a cost, but if there is it will be greatly reduced.

The UK government has confirmed that safeguarding the status of EU citizens in the UK, and of UK nationals in the EU, will remain a priority. Prime Minister Theresa May said this week, “We want you [EU citizens] to stay.”

Keep your eye on The Global Mobility Review blog for further developments.

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Safeguarding the status of EU citizens: UK and EU negotiation update

MAC consultation on the future of the UK immigration system

As highlighted in our September Round-Up, we are participating in a call for evidence published by the UK’s Migration Advisory Committeee (MAC).

The UK government asked the MAC to advise it on the economic and social impacts of the UK’s exit from the European Union and also on how best to align the UK’s immigration system with a modern industrial strategy.

The MAC’s findings and recommendations will be based on the evidence it receives from interested parties. We will be your voice to the MAC. But to do so, we need your input and have developed a short survey to gather some general opinions.

Please find the survey here. It should not take you more than 5–10 minutes to complete the 13 questions. All responses will be anonymous and used to inform our response.

Please complete the survey by Wednesday, October 18, 2017.

Note: The acronym “EEA” refers to the European Economic Area, which includes all EU countries plus Iceland, Liechtenstein and Norway. The EU countries are Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.

If you have any queries, please contact your usual Dentons lawyer.

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MAC consultation on the future of the UK immigration system

Mind the gap

Employment law issues seem to be rife with gaps at the moment. We have already reported on the gender pay gap, brought to the fore by the UK’s new reporting regulations for gender pay that took effect on April 6, 2017. However, it looks like we are now dealing with another gap: the skills gap that commentators believe will be one of the consequences of the UK exiting the EU. In fact, we are already seeing the effects, as potential migrant workers are reluctant to come to the UK at a time of such uncertainty. As a result, there is a significant shortage of workers to fill such typical blue collar jobs as drivers, electrician assistants and construction workers. Sectors such as healthcare, retail and construction are among those feeling the squeeze, as they are heavily reliant on EU migrant workers. A study by the Recruitment and Employment Confederation (REC) points out that EU migrants are over-represented in low-skilled jobs, filling 15 percent of them, compared with 7 percent by non-EU migrants and 78 per cent by Britons.

Furthermore, Brexit has led to curbed planned growth and investments for one in four small and medium-sized enterprises (SMEs), according to the latest “UK SME Confidence Index” from Vistage. And the shortage of workers has forced employers to raise starting salaries. According to the REC study, in August salaries increased at the fastest pace in nearly two years. This trend may not be sustainable over the long haul if it impacts too negatively on profitability and business sustainability.

In the meantime, automation and digitalization have been proposed as possible solutions to bridge the gap. However, whether replacement of people with machines is quite what voters intended back in June 2016 when the referendum took place is questionable at best.

 

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Mind the gap

Green card processing times for employment-based immigration expected to increase

 

Delays and increased processing times can be expected for employer-sponsored immigrants seeking green cards, based on a recently announced change by the US Citizenship and Immigration Services agency (USCIS).

In a press release dated August 28, 2017, USCIS stated that the agency plans, effective October 1, 2017, to begin interviewing employment-based immigrants. This will impact employer-sponsored professionals, skilled workers, executives, manager, and outstanding professors and researchers, as well as individually sponsored immigrants with extraordinary or exceptional ability.

The press release states: “Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.”

This statement is inaccurate. In fact, the agency used to personally interview all immigrants. Decades ago, the policy changed and employment-based immigrants were only interviewed if a review of the application showed a need for an interview or as a random, quality-control measure. The primary reason for the change was to devote agency resources to more important tasks, after the agency determined the incidence of fraud detected by in-person interviews was not significantly greater than for applications processed without interviews. In addition, waiving the interview process allowed the agency to consolidate processing at regional centers where government workers were better trained in the special requirements for such immigration. Finally, remote processing at regional centers without direct public contact minimized the inconsistent processing experienced at local offices, as well as the incidence of fraud and corruption by government workers in direct contact with the public.

As Sir Winston Churchill famously stated: “Those who fail to learn from history are doomed to repeat it.” Local interview processing times vary, but the new policy is likely to increase by more than four months the time it takes USCIS to process applications for adjustment of status and maybe much longer where local offices with significant immigrant populations, such as Silicon Valley, are doing the processing.

By the way, the State Department has always interviewed all immigrants. Although going this route is more costly in terms of travel and lost US work days, more immigrants and their employers may want to consider this option if USCIS processing times spiral out of control.

The full text of the agency’s press release can be found at the USCIS website and the Executive Order can be found at the White House website.

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Green card processing times for employment-based immigration expected to increase

MAC to examine the role EU nationals play in the UK

The UK government has tasked the Migration Advisory Committee (MAC), the government’s independent advisers on migration, to examine the role EU nationals’ play in the UK economy and society.

Amber Rudd, the Home Secretary, engaged the MAC to look into the British labor market, the overall role of migration in the wider economy, and how a modern industrial strategy should align with the UK’s immigration system. The MAC will consult with a wide cross-section of businesses, employer organizations and EU citizens working in the UK.

The importance of this initiative should not be underestimated, as free movement will end when the UK exits the EU. The government is working on plans to develop the flow of migration from Europe. (See: The rights of EU citizens in the UK, The Global Mobility Review, July 13, 2017 blog post). The UK and the European Commission had key discussions at the end of July, and the next round of negotiations is scheduled for late August 2017.

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MAC to examine the role EU nationals play in the UK

New Form I-9 and E-Verify User Manual for US employers

The US Citizenship and Immigration Services (USCIS) issued a revised Form I-9 and E-Verify User Manual. Employers should use the new Form I-9 for all new hires and for re-verification of current employees when their temporary employment authorization expires.

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, citizens and noncitizens included.

USCIS, which is an agency under the US Department of Homeland Security (DHS), operates the E‑Verify program, an Internet-based system that allows any US employer to electronically verify the employment eligibility of a newly hired employee.

E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. E-Verify is also a requirement for employers of F-1 foreign students employed under STEM Optional Practical Training. Further, employers in states that have enacted legislation require some or all employers to utilize E-Verify as a condition of business licensing.

The new Form I-9 is available at the USCIS website. The new E-Verify User Manual is available for download here.

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New Form I-9 and E-Verify User Manual for US employers