WORKPLACE CHANGE AND FREE MOVEMENT OF WORKERS; ANALYSING THE IMPACT OF BREXIT
Introduction:
With the possibility of some EU laws being rolled back following a vote by the UK to leave the EU (Brexit), workplace change could be precipitated. Couple this with employers’ concerns on the impact Brexit may have on the free movement of workers.
Two years is the likely minimum period before the UK would actually leave the EU. However, the complex issues involved suggest that a longer period may be necessary. The EU treaty sets out a mechanism for a Member State to withdraw from the EU. Under this treaty, the UK would give notice to leave followed by a period of negotiation to agree the terms of the withdrawal. Exit would occur, at the earliest, on signing the withdrawal agreement, or two years after notice is given. The UK government will determine when the notice is served, thus starting the two year period - which can be extended by agreement.
About the author:
Sue Kukadia, Group Director of Immigration Services, has been working in global immigration for over seventeen years and has twelve years’ experience in leading, coordinating and transitioning large global corporate immigration engagements. She is a qualified Global Immigration Practitioner and has completed the New York Bar Exams in the US. Her technical expertise includes all types of immigration applications and she regularly advises government on immigration changes.
How the UK’s relationship with the EU could change
Given that there is no Brexit comparable precedent to provide guidance, there is significant uncertainty – no-one knows. Most commentators agree that upon leaving a bespoke arrangement would be negotiated, to provide for the terms of the UK’s continuing relationship with the EU. As a minimum this could include a free trade agreement, providing for the free movement of goods between the UK and the EU. This all depends on what the EU would require in return, as part of the negotiation. Various media reports present the Swiss and Norwegian EU arrangements as possible model examples of a future UK and EU relationship. The UK Government has indicated, however, that the Norwegian model is not favoured. Plus, the EU seems unlikely to offer the Swiss model as it’s argued to be complex and cumbersome in nature.
What if EU citizens faced the same UK immigration rules as non-EU citizens?
Work visa rules would be crucial in determining which EU citizens were able to enter, or remain, in the UK. Recent changes to UK immigration laws, effective autumn 2016, include an increase to the minimum salary threshold for Tier 2 (General) applications to £25,000 (experienced workers). Plus, a further increase in the minimum salary threshold to the Tier 2 (ICT –Short-Term) category to £30,000. From April 2017 there will be further changes to the UK immigration laws, including an increase to minimum salary threshold for Tier 2 (General) to £30,000. Plus, closure of the Tier 2 (ICTShort-Term) category. This will require migrants to qualify under a single visa category with a minimum salary threshold of £41,000, with the exception of the Graduate Trainee route.
The other main route that provides a pathway to settlement is family. If EU citizens faced the same rules as non-EU citizens, those who wanted to take a spouse to the UK would need to meet the family income threshold. Again, if this were to change, the current low average incomes of citizens of new EU member states would be a significant obstacle to family migration.
There are considerable legal hurdles to consider, including the negotiation of new trade agreements and revision of UK immigration legislation. Clearly, there will be change to immigration policy. It is important that organisations are prepared for any changes that occur. Businesses should act now by reviewing how changes in immigration law could impact their workforce.
How the free movement of people could change
The right of EU citizens to freely live and work across the EU is of great significance to many employers. Thereby, supporting employee mobility, labour supply and flexible recruitment practices. If the UK were to leave the EU, in theory, citizens of other Member States would then no longer enjoy an automatic right to travel and work in the UK. By the same token, UK citizens would no longer enjoy EU citizenship rights of freedom of movement in the EU. In reality, transitional arrangements would no doubt form part of any negotiation. Some EU nationals may have acquired rights under UK legislation, but it seems more likely that EU nationals already working in the UK would be permitted to stay. In return, similar arrangements for UK citizens working in other EU countries. By severely restricting the free movement of people between the UK and the EU, the UK government will be aware of the potential adverse impact on trade competitiveness and the availability of labour.
With the end of free movement of people, following a Brexit vote, it is possible that UK and EU negotiations might fail. Possibly, being replaced by a patchwork of separate border controls agreed with different countries, or a points-based type system currently applied to non-EU nationals but simplified for EU citizens. In the absence of an agreement to allow free movement, whatever the UK were to do, EU countries would be free to impose their own restrictions on UK citizens. According to the United Nations 2014-2015 report, approximately 1.3 million of UK citizens are living in Europe.
UK citizens residing in the EU
While possible it’s unlikely that UK citizens residing in the EU will be barred from healthcare and benefits. Not least because it would open the door to retaliatory measures from the UK, which hosts its own share of citizens from European nations, but the UK could claim to pay its own way. There are a reported 3 million EU nationals living in Britain. It’s also reported that the UK paid £674 million in 2014-2015 to other European countries for the treatment of UK nationals, compared to the UK receiving £49 million from other European nations in the same year to treat those from other countries residing in the UK.
UK citizens will almost certainly not be deported by EU members. There are numerous political reasons for EU states not to do such a thing, including the treatment of their own nationals living in the UK. Mass expulsions of citizens from another developed economy would also startle foreign investors, and potentially cause economic turmoil in the expelling country.
The Vienna Convention of 1969 states that the termination of a treaty “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.” Plus, The House of Commons Library says that “withdrawing from a treaty releases the parties from any future obligations to each other, but does not affect any rights or obligations acquired under it before withdrawal.” UK citizens residing in the EU would have significant legal protections that apply after Brexit. Many lawyers argue that British citizens living in the EU at the time of Brexit would have individual “acquired rights” under international law.
In other words, British citizens who have already exercised their right to live in EU states can expect to keep that right after Brexit. Importantly, this is likely to only apply to people who have started living in the EU before Brexit.
Conclusion
Despite the difficulty of forecasting the impact of Brexit, some themes do emerge. Firstly, the complexity and lack of precedent bring significant legal, financial and commercial uncertainties. Whereas a vote to leave would not result in overnight change. Instead a negotiation, possibly lasting years, would commence on the UK’s relationship being outside the EU. During such a negotiation, the more the UK pushed for continuing access to the EU’s Single Market the more the EU would require, in return, for the UK to abide by EU regulation - the free movement of people, and so on.
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