With Brexit looming, and many of our clients already feeling its effects, the firm is delighted to have hired Jacqueline Moore, an immigration law specialist. In this Q & A, we question Jacqueline on the current immigration position for European Economic Area (EEA) workers; what will happen to this workforce after we depart the EU on 29 March 2019; and how the new immigration landscape is likely to be determined, including her views on the interim Migration Advisory Committee (MAC) report on EEA workers in the UK labour market.
1. Tell us a bit about your background and how you can help rural businesses and clients cope with the current immigration challenges posed by Brexit?
Well, in terms of my professional background, I have specialised in Immigration law for more than 18 years – advising both businesses and individuals across a broad range of Immigration issues.
Immigration law operates in a highly politicised environment and is complex and constantly changing. Brexit is of course a total game-changer in terms of how the whole immigration system will operate. I see my role as bringing clarity and forewarning around the changes being proposed, so clients can factor those into their business plans at the earliest possible stage.
On a more personal level, my family own and run a dairy farm business, so I am acutely aware of how serious an issue sourcing a reliable workforce is for the rural sector. This has become a more challenging issue since the Brexit vote, which has already resulted in marked labour shortages.
2. Why do you think the numbers of EEA workers has already declined so markedly?
One of the problems around Brexit was that the discussion about agriculture focused on subsidies, imports and a replacement, if any, of the Common Agricultural Policy. There was little debate or argument on agricultural labour. Yet, two years after the vote, the results of a fall in EEA labour can be seen in the countryside; fruits rotting in orchards and crops going unpicked.
There are two reasons behind the dramatic drop in the EEA workforce. Firstly, many EEA workers may have chosen to find seasonal work elsewhere, and that may be down to the lower value of sterling against other currencies since the Brexit vote and/or a reluctance to come to Britain as they no longer felt welcome. In addition, most seasonal work was being carried out by New Member State (NMS) workers and the Brexit vote coincided with strong economic growth in many of these countries, resulting in many potential workers staying at home.
3. What can businesses do to encourage new EEA workers to come to the UK?
Firstly, they should reassure potential workers that they can continue to come to live and work in the UK, without any real change, until the end of the transition period. In many ways, 29 March 2019, is not the ‘real’ Brexit day – the real Brexit Day is the end of the transition period, currently 31 December 2020. The only difference between those who come after 29 March 2019 and those already in the UK is, those who come after 29 March 2019 will be required to register if they wish to stay in the UK beyond three months.
In many ways, coming to the UK before 31 December 2020 looks likely to be a one-off opportunity for any EEA citizen and their family members to acquire full UK residency rights. Anyone living in the UK prior to 31 December 2020 will have a right to permanent settlement – the only exception to this will be those who have committed serious offences.
4. What can businesses do to reassure their current EEA workforce?
It has now been agreed at negotiator level that they and their family members will be able to stay permanently in the UK post-Brexit.
EEA citizens who are in the UK as at 31 December 2020 will be able to apply for a new form of immigration status. Those who have been here for five years will be granted settled status, and for those with less than five years residence, a grant of pre-settled status will be made which can lead to settled status once five years of residence has been acquired.
Unlike the current system, where EEA nationals have a choice as to whether to apply for documents to confirm their status, the new system makes the application mandatory. An estimated 3.3 million EEA citizens and their families will have until 30 June 2021 to make these applications.
Employers should ensure their workforce is aware of this requirement and should record when individual employees obtain their new status.
5. What happens if an employee fails to register by 30 June 2021?
Under Government plans, an EEA citizen who fails to register by the June 2021 cut-off will find themselves here illegally, and subject to the hostile environment that currently exists for non-EEA migrants. Anyone found employing an illegal worker could potentially face fines of up to £15,000 per worker.
6. Will EEA workers be able to come to the UK after the end of the transitional phase, and if so, on what basis?
The Government are remaining tight-lipped on what the immigration position will be for EEA nationals after this date. It appears to be a sticking point between cabinet ministers, with Sajid Javid, the home secretary, reportedly being strongly against preferential treatment for EEA nationals. The prime minister told the BBC in a recent interview it remains to be decided whether EEA nationals will receive preferential treatment. With EEA nationals accounting for 9% of the workforce in the Agriculture, Forestry and Fishing industries, a solution on filling the labour gap is urgently needed.
7. How do non EEA workers come to the UK under the current immigration system and could the current system be extended?
The main work route for non-EEA workers is sponsorship under the Points Based System. However, this route is purely for skilled workers, and the definition of ‘skilled workers’ is those filling professional jobs which require a university degree. Therefore, the rural sector can’t fill low to medium-skilled roles with non-EEA labour under the current system.
There are two potential ways of resolving this issue. Firstly, the skills level required to obtain a Tier 2 visa could be lowered, which would allow some medium-skilled level jobs to come within its reach; for example egg farm managers and meat cutters. However, Tier 2 was never intended for low-skilled jobs and the Tier 2 process itself is both burdensome and expensive for employers. A second option would be to implement Tier 3 of the sponsorship system – a tier which was originally intended to be used for unskilled workers though never brought into force – given labour demands have, up until very recently, been met by NMS workers.
This could be attractive to the Government, as it would continue the concept of sponsored employment, with employers being able to employ migrants in exchange for adopting an Immigration gatekeeper role. Other options being mooted are more straightforward quota schemes based on factors such as age and nationality. Finally, there are loud calls from those in the rural sector for the return of a seasonal workers scheme similar to the Seasonal Agricultural Workers Scheme (SAWS) which ended in 2013.
8. When will the Government let businesses know its plans?
In July 2017, the UK government commissioned the MAC to report on the current and likely future patterns of EEA migration, and on the potential impacts of that migration on the UK. The MAC’s final report is due in September 2018, so changes to the Immigration Rules will be introduced after the government has had time to consider the report, though this is likely to take months rather than weeks.
9. Can businesses glean anything from the Migration Advisory Committee’s investigations to date?
Although, the MAC’s full report is not due until September, it has released interim information, including an interim report in March entitled EEA-workers in the UK labour market: Interim Update.
The interim report is a curate’s egg – good and bad in parts. On a positive note, the report appears to recognise the reasons why the rural sector is reliant on EEA labour and the particular problems filling low-skilled jobs. However, some of their comments on how these issues are being addressed are concerning. For example, when considering that migrants are willing to take on lower-paid jobs which are not attractive to local workers, the MAC suggests that the horticulture industry follows the oil and gas industry and offers higher salaries to compensate for challenging and anti-social working conditions. The report also seems to place an over-emphasis on new technology as a solution to labour shortage problems. Whilst agri-tech can lead to greater productivity, not all agricultural processes can be met by machines – strawberry picking being just one example.
I will provide a full analysis on the MAC’s final report when it is published in September. In the meantime, I would recommend employers do all they can to reassure their current EEA workforce about their residency rights, which after months of uncertainty have been positively agreed, and to actively recruit from the EEA while this window of opportunity exists and until the end of the transition period.