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Brexit latest: EU nationals who arrive during the post-Brexit transition period can stay

On February 28, the UK government announced that EU nationals who arrive in the UK after Brexit Day (scheduled for March 29, 2019), but before the end of the so-called “implementation” or “transition” period, will be able to stay permanently. This is a shift from the UK’s previous position that arrivals after Brexit Day would be entitled to remain on a temporary basis only and would become subject to immigration controls at the end of the transition period. While this announcement brings the UK closer to the EU’s stance on this matter, there are still some fundamental differences to be negotiated.

Overall this is positive news for employers, especially those who rely on EU talent, who will now have a longer period to build new talent pipelines to replace workers from the EU.

However, this concession may have come too late for some employers who have already lost valuable talent due to a general feeling of uncertainty among EU nationals and negativity around citizens’ rights. It remains to be seen whether this latest shift in negotiating position will be enough to convince EU nationals that the UK remains an attractive destination to work and build a career.

The UK’s original position was partly based on an assumption that EU nationals would rush to move to the UK before a given cut-off date. The dramatic fall in net migration from the EU since the referendum shows that there was never a risk of this happening.

EU nationals who arrive in the UK during the transition period will be subject to a registration system in line with what is already common practice in other EU member states. After accumulating five years’ residence in the UK an EU national will be able to apply for indefinite leave to remain (ILR), which will allow them to live in the UK permanently.

It should be noted that ILR is not the same as “settled status,” which EU nationals who arrive before Brexit Day will be able to apply for. The application process for ILR usually requires the applicant to satisfy minimum salary requirements, demonstrate English language ability and pass the “life in the UK” test. ILR is also more restrictive than settled status; for example, the holder of ILR will lose this status if they are absent from the UK for a period of two years, while for the holder of settled status, absence up to five years is permitted. It remains to be seen what the qualifying criteria for ILR in this situation will be, and whether a special procedure will be established that is more closely aligned to settled status.

Looking to the future, employers should also be encouraged by the following section of the announcement, which relates to a new immigration framework to be implemented post Brexit:

“… leaving the EU does not mean the end of migration between the EU and the UK. The new framework will therefore be designed to support the UK economy, enable businesses and key public sector workforces such as the National Health Service to access the skills they need, and underpin our trading relationships with partners in Europe and around the world.”

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Brexit latest: EU nationals who arrive during the post-Brexit transition period can stay

Brexodus continues

Net migration from the EU has plummeted from 165,000 in 2016 to 90,000 in 2017.

As expected, in the latest statistics released by the Office of National Statistics today, net migration from the EU has plummeted, with fewer EU nationals moving to the UK and more leaving:

2016 2017
EU nationals who immigrated to the UK 268,000 220,000
EU nationals who emigrated from the UK 103,000 130,000
Net migration +165,000 +90,000

This is of significant concern to industries and sectors that rely heavily on EU talent, with health and medical services, and farming and agriculture already dealing with considerable labour shortages.

The UK will officially leave the EU on March 29, 2019, and even though this is still over 12 months away, employers are already feeling the impact.

The other interesting statistic released today is the huge increase in EU nationals applying for British citizenship. In 2016 15,460 EU nationals applied for British citizenship—following the Brexit referendum this number more than doubled to 38,528 in 2017.

What we can take from both of these statistics is that the lack of certainty in citizens’ rights and future immigration policy following Brexit is forcing individuals to consider and protect their position in the UK. At one end of the spectrum we can see that EU nationals are securing their rights in the UK by naturalising as a British citizen, and at the other end EU nationals are reassessing whether the UK is the place to establish a life and career in the first place. Without certainty on citizens’ rights and future immigration policy we can expect these statistics to continue on the same trajectory.

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Brexodus continues

Home Affairs Committee issues report: Building consensus around immigration policy

The Home Affairs Committee consists of 11 Members of Parliament drawn from the three largest political parties (Conservative, Labour and the Scottish National). It has been chaired by Yvette Cooper MP (Labour) since 2016.

The Committee is currently managing a number of immigration-related inquiries. The most relevant to business immigration are:

  • Home Office’s capacity to deliver immigration services post-Brexit (launched October 5, 2017), which explores the capacity of the Home Office to meet the demands that Brexit will present, such as whether it can process applications from the 3 million EU nationals currently residing in the UK. Evidence has been gathered and we are currently awaiting the Committee’s report.
  • Building a consensus around immigration policy (launched October 17, 2017), which looks into the public perception of immigration and how the government might go about achieving greater consensus on immigration policy.

On January 15, 2017, the Committee published its report on the latter topic: “Immigration policy: basis for building consensus.” Click the UK Parliament website to read (i) the report summary, (ii) the report conclusions and recommendations and (iii) the full report.

To summarize the report’s main themes:

  • There is a lack of trust in official data, targets and decision-making on immigration policy.
  • Rules are complex and hard to understand, and there is concern that they are not being enforced.
  • Stronger coordination is needed between immigration policy and labor market policy.
  • Action is needed to address the impact of immigration, including appropriate investment in housing, public services and integration plans.

As the saying goes, perception is truth. While immigration rules are arguably easier to understand now than prior to the introduction of the points-based system, if public perception is the opposite then there is work still to be done.

If we look at the last 15 years there have been a number of events that have had an impact on the perception of immigration, such as the global financial crisis, the EU’s expansion into Eastern Europe and, most recently, the referendum on exiting the EU.

The report makes a number of compelling recommendations to address the public’s negative perception of immigration. With inevitable changes due to Brexit we have an opportunity to develop an immigration system that will be viewed positively by the wider population.

Some of the recommendations that are most relevant to business immigration and employers are:

  • Scrap the current net migration target and replace it with a new framework of targets and controls based on evidence.
  • Publish an annual migration report on migration flows, the economic contribution from migration and the measures taken by the government to manage impacts and pressures.
  • Link immigration policy for work purposes to strategy for improving investment in domestic skills and training with the target of reducing dependency on migrant labor.

Assess whether over reliance on migrant labor in some low-skilled jobs is due to poor pay, terms and conditions, and what restrictions and controls are needed to prevent undercutting and exploitation.


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Home Affairs Committee issues report: Building consensus around immigration policy

Trade deals and immigration

How will future trade deals impact UK immigration policy?

With Brexit negotiations between the UK and the European Union progressing, the UK is keen to start trade talks with the EU as soon as possible. While a trade deal with the EU is a priority, other countries, including India and Australia, have expressed that, in the fullness of time, they also would like to negotiate their own trade deals with the UK.

The UK’s Brexit Secretary, David Davis, has stated that he is looking for a “Canada Plus Plus Plus” trade deal with the EU, a reference to the recent deal between the EU and Canada. Labor mobility is a key element of that deal, making it easier for certain skilled professionals from Canada to work temporarily in the EU, and vice versa.

We can also learn from other trade deals:

  • The Trans-Pacific Partnership (TPP) trade deal currently being negotiated between 11 Pacific Rim countries (notably not including the US, which withdrew from the pact) is also looking to include an element of labor mobility. For example, it is proposed as part of this deal that it will be easier for Australian employers to recruit people from Canada, Chile, Japan, Malaysia, Mexico and Vietnam by exempting them from the usual requirement of advertising the role to Australians as part of the immigration process. In return, Australians will get reciprocal access to the labor markets of these six countries.
  • Likewise, one of the outcomes of the Australia-United States Free Trade Agreement (AUFTA), which came into effect in 2005, was the US E-3 visa, which is available only to Australians. The E-3 visa is similar to the H1-B visa, however more generous in that it has a separate quota of 10,500, is renewable indefinitely and has the additional benefit of the spouse of the main visa holder being able to work. In contrast, the H1-B visa has a quota of 65,000 (for applicants of all other nationalities), is capped at six years and the spouse of the main visa holder is not able to work. Singapore and Chile enjoy similar preferential immigration routes to the US as a result of their free trade deals.

One of the key arguments for voting to leave the EU was that the UK would be able to negotiate its own trade deals. So what are our likely trading partners saying?

  • Australia has spoken of the need for “greater access” to the UK for Australian business people.
  • India has already stated that the UK will need to relax immigration rules and make it easier for professionals and presumably students from India to come to the UK.
  • The EU is another matter entirely with many competing priorities and parties. The degree of labour mobility post Brexit will depend on whether we see a “soft Brexit” or a “hard Brexit”, which is still very much to be decided.

What is certain is that any trade deal the UK negotiates after Brexit will be about more than goods and services. Labor mobility will be a key element and it is therefore inevitable that any future trade deals the UK agrees will have an impact on immigration policy.

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Trade deals and immigration

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

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

Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked President Trump’s revised executive order suspending US entry by foreign nationals from six, rather than the previous seven, mostly Muslim countries. However, the Court carved out an exception for foreign nationals who have a “bona fide relationship” with a person or entity in the United States,” raising such questions as “What is a bona fide relationship?” and “What is an entity in the US?” that will likely be the subject of further court action.

Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked Executive Order No. 13780, signed by President Donald J. Trump in March 2017 (EO-2), banning travel to the US for citizens of six countries. The Supreme Court scheduled a full hearing of the case for October 2017.

“Bona fide relationship” exception

The Supreme Court found that the preliminary injunction shall remain in place and the travel ban will not impact foreign nationals who have a “bona fide relationship with a person or entity in the United States.” Further, refugees will continue to be allowed to enter the US, subject to the 50,000 person cap on refugee admissions, except that the cap cannot be used as a means to bar an individual with a bona fide relationship with the US.

The Supreme Court defined “bona fide relationship” as either (with respect to individuals) “a close familial relationship” or (with respect to entities), a relationship that is “formal, documented, and formed in the ordinary course.” What constitutes a sufficiently close familial relationship is likely to be the subject of further court action.

As for what constitutes a sufficiently established relationship with an entity, the Supreme Court provided three examples:

  • Students admitted to attend university in the US
  • Workers who have accepted an offer of employment from a US company
  • Lecturers invited to the US for a speaking engagement

The travel ban will apply to individuals whose relationship with an entity was formed to purposefully circumvent the ban.

It is worth noting that EO-2 in its original form applies only to the new issuance of visas, and not the US entry of individuals who have already been issued visas, green cards or asylum/refugee status.

Also, there is a chance that the Supreme Court will not have to hear the case in its entirety in October. If EO-2 goes into effect as scheduled by the Trump administration, the 90 day temporary ban will conclude at the end of September, several days before the Supreme Court begins its term. This would, then, remove any controversy over the legality of that piece of the order.

Citizens from these countries impacted

Citizens from the following countries are detrimentally impacted:

  • Iran
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

EO-2 does not apply to citizens of other countries who merely visited the listed countries. Further, it does not apply to citizens of these six countries who are dual citizens and use the passport of a non-affected country to apply for a visa and enter the US.

When does the ban start?

In a June 14 memorandum, President Trump directed the Department of Homeland Security (DHS), the Department of State and other relevant agencies to wait 72 hours from the release of the Supreme Court decision before banning refugees and travelers from the six affected countries to “ensure an orderly and proper implementation” of the changes.


During his first six months in office, President Trump signed two travel ban executive orders. The first, Executive Order 13797 (EO-1), issued on January 27, 2017, took a number of steps, including:

  • Suspending for 90 days the entry of foreign nationals from seven mostly Muslim countries identified as presenting heightened concerns about terrorism and travel in the US [1]
  • Suspending for 120 days the United States Refugee Admissions Program (USRAP), during which an adequacy review is to be undertaken
  • Reducing to 50,000 per year the total number of refugees that could be admitted to the United States, starting in fiscal year 2017
  • Suspending indefinitely admission of refugees from Syria

EO-1 was quickly blocked  by the US District Court for the Western District of Washington, which issued a nationwide temporary restraining order. The US Court of Appeals for the Ninth Circuit denied an emergency motion by the US government to stay the district court order pending appeal. In response, the government rescinded EO-1 and went back to the drawing board.

On March 6, 2017, President Trump signed EO-2, which closely mirrored the directives in EO-1, but was intended to correct some its perceived errors, including:

  • Reducing the reach of the 90-day temporary suspension of entry to foreign nationals from six (rather than seven) mostly Muslim countries, with Iraq no longer included [2] and with a case-by-case waiver of the entry bar.
  • Directing the Secretary of DHS to undertake a 20-day global review of whether foreign governments provide sufficient information about nationals applying for visas.

EO-2 was immediately challenged in court, which challenges led to prompt nationwide preliminary injunctions by the US District Court for the District of Maryland and (as stated above) the Western District of Washington, which were then appealed to the US Courts of Appeal for the Fourth and Ninth Circuits, respectively.

The Fourth Circuit concluded that the EO-2 ban on entry from the six named countries was primarily motivated by religious considerations and, as such, violated the First Amendment. In that case, the preliminary injunction only applied to the suspension of entry of foreign nationals from particular countries. The 120-day ban on USRAP and the quota on total refugee immigration would still be in force.

The Ninth Circuit, meanwhile, found that EO-2 exceeded the president’s authority under the Immigration and Nationality Act (INA) and, on that basis, upheld the injunction with regard to the entirety of EO-2.

The federal government appealed both decision to the Supreme Court, certiorari was granted, and the two cases were consolidated and oral argument scheduled for October Term 2017. The Supreme Court, meanwhile, heard the government’s application to stay the aforementioned injunctions.

Dentons will continue to issue further information as it becomes available.

[1] Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

[2] Iran, Libya, Somalia, Sudan, Syria and Yemen

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Supreme Court allows travel ban

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?

Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

May 25, 2017
1:00 PM – 2:00 PM EDT

Our Employment and Labor team marked the passage of President Trump’s first 100 days with a webinar on May 25, 2017 that looked at whether the president’s budget proposal backed up his prior public statements about wanted changes to employment, benefits and immigration regulations, as well as the impact on employers of the spending bill passed by Congress to prevent a government shutdown. By “following the money,” you can better prepare for future compliance demands and enforcement risks. For your convenience, the program can be viewed in it’s entirety and to register to the webinar by visiting the event page.

We hope you are able to join the program.

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Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers