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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

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

The rights of EU citizens in the UK

The UK government has published a policy paper setting out its offer to EU citizens and their families residing in the UK regarding their right to remain in the country post-Brexit. The offer differs depending on how long a person has been in the UK.

People who have been continuously living in the UK for five years will be able to apply to stay indefinitely by getting “settled status.” A settled status residence document will be issued to prove an individual’s permission to continue living and working in the UK. Those already with an EU permanent residence document will be required to apply. The application process should come online before the UK leaves the EU, hopefully in 2018. The government has pledged to make the process as streamlined and user-friendly as possible.

Other EU citizens in the UK will be subject to a “cut-off date” after which they will no longer be automatically entitled to stay. The date is still to be negotiated, but may fall at any point between March 29, 2017 (the date that Article 50 was triggered) and the date that the UK leaves the EU.

EU citizens who arrived in the UK before the cut-off date, but who have not been here for five years when the UK leaves the EU, will be able to apply to stay temporarily until they have reached the five-year threshold, at which time they also can apply for settled status as set out above.

EU citizens who arrive in the UK after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under future immigration arrangements for EU citizens. The arrangements have yet to be determined, but the government stated that there should be no expectation by this group of people that they will obtain settled status.

Please visit The Global Mobility Review next month for further information on this development.

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The rights of EU citizens in the UK

Status of EU citizens in the UK

The Home Office has sent a communication to interested parties following the government’s publication of a paper outlining its offer to EU citizens in the UK. The government has reiterated its position that no action need currently be taken. “The UK will remain a member of the EU until March 2019 and there will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU, during this time. So, EU citizens do not need to apply for documentation confirming their status now.”

The government’s policy paper sets out that the government will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. It aims to make the process as “streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules.” It is expected the new application system will be up and running in 2018.

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Status of EU citizens in the UK

UK Queen’s speech: What might immigration look like after Brexit?

It may not have been accompanied by the usual pomp and circumstance, but the Queen’s speech on Wednesday, June 21 did provide some further clues as to what the government has planned for EU nationals post-Brexit. In the speech, the Queen confirmed that there are plans for an immigration bill that, if passed, will enable the government to end the free movement of EU nationals into the UK, but still allow the country to attract “the brightest and the best.” The bill would require EU nationals and their families to be “subject to relevant UK law,” she said.

This seems to suggest that we can expect to see a skills-based immigration system for EU workers following Brexit. Reading in between the lines, it also seems we can expect that EU nationals already working in the UK who choose to remain will be allowed to do so. However, those who do choose to remain will be subject exclusively to UK law, and will no longer enjoy the protections afforded by the European Court of Justice. Presumably this would work along the lines of Norway’s membership in the single market.

Currently EU nationals in the UK are advised to apply for permanent residency if they meet the qualifying criteria. The thinking being this may be sufficient to secure their stay in the UK after Brexit. Theresa May is in Brussels for Brexit talks today, where she is set to address EU leaders on her plans for the 3 million EU nationals currently residing in the UK, and the 1 million UK citizens currently residing in mainland Europe. We understand that full details of her plans will be published on Monday, ending the uncertainty that currently hangs over those who have exercised their right to freedom of movement, and over their employers.

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UK Queen’s speech: What might immigration look like after Brexit?