Employers glimpse the future of EU skilled migration

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The government White Paper on the future relationship between the UK and the EU, published last week, mostly evades the issue of the future of skilled EU workers.

The White Paper proposes “reciprocal provisions on intra-corporate transfers … based on existing arrangements with non-EU countries.” The only problem with this proposal is that there are no reciprocal arrangements with non-EU countries on intra-corporate transfers. Sponsorship of skilled workers under the points-based system (PBS) is the existing arrangement for intra-corporate transfers. The sponsorship regime is not an arrangement that has been agreed with non-EU countries. So what does the wording in the White Paper mean?

It likely means that the future routes for skilled EU nationals will include elements of the sponsorship regime. In particular, something similar to the intra-company transfer subcategory might be available. The intra-company transfer subcategory allows sponsors to transfer employees from an overseas linked business (for example a company sharing the same parent company), rather than sponsoring a non-EEA migrant as a new hire.

The advantage of the intra-company transfer route is that the employer is not required to advertise the role and demonstrate that no UK settled workers are available to fill the role. Also, intra-company transfer migrants are not subject to the cap on skilled workers that wreaked such havoc for employers including the NHS earlier this year and catalysed a change in the Immigration Rules, exempting doctors and nurses from the cap, on 6 July. The disadvantage is that the minimum salary threshold is relatively high at £41,500. EU nationals might enjoy a similar exemption from the resident labour market test and have to meet a high salary threshold.

The extent to which UK employers will have to submit to the sponsorship regime in order to employ highly skilled EU migrants is not known. The current sponsorship system is complex and demands significant resources from a business. Sponsors must apply for a sponsor licence and comply with extensive duties when authorising non-EEA migrants to work in the UK. Visa-related fees are high and various, and the consequences of non-compliance can seriously damage a business.

We know that the Home Office intends to abandon the current system’s terminology of tiers within a PBS, as per its response to the Home Affairs Committee’s inquiry into the Home Office’s capacity to deliver Brexit. However, it is not clear whether this means that the government plans for substantive change. The UK PBS is one in name only, as applicants cannot make up for a shortfall of points in one desirable characteristic with points from another desirable characteristic. Rather, the current system is one in which strict criteria are applied.

We know too that the Law Commission is simplifying the Immigration Rules. However, the Law Commission has stated that it will not make substantive changes to policy. Therefore, it is possible that UK employers will be subject to complex sponsorship requirements when employing EU nationals arriving in the UK after the post-Brexit transition period.

Since 2010, intra-company transfer migrants have not been eligible for settlement in the UK. It is unclear whether the same restriction would apply to EU national migrants arriving in the UK after the proposed post-Brexit transition period. It is possible that the UK would allow settlement for highly skilled workers, regardless of whether they come to the UK under intra-company transfer provisions, to attract businesses and talent.

With the Brexit deadline looming and the Migration Advisory Committee report on EU and wider migration due in September, we might finally know the UK’s proposals for the future of EU nationals in the UK in a few months’ time. Until then, we can turn the indeterminate text of the White Paper over in our minds.

Downs Solicitors Samar Shams

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