Views and Opinions, with Olga Leimoni
Legal Executive at LP Legal Services
UPECO: Has anything changed for foreign workers in the UK in the aftermath of Brexit? If so, what are the changes and since when?
It is important to appreciate that foreign workers are classified under the UK immigration system. There is a distinction between international workers and European workers. For international workers the UK has its own national immigration law (the "Immigration Rules") whilst the laws for European workers are depicted by European law, which is implemented into national law (the “EEA Regulations”).
With respect to international workers, the immigration rules have traditionally been going through constant changes and such changes are not necessarily intertwined with Brexit. International workers in the UK will continue to be subject to the relevant restrictions attached to their leave to remain in the UK depending on the type of leave to remain they hold.
Whether Brexit will, directly or indirectly, play any role in future changes in the immigration rules regarding international workers and their rights and obligations is yet to be seen, although it is speculative to say that it will indeed influence any future changes. This is because Brexit is concerned with the relationship between the UK and Europe rather than the international immigration system per se. Therefore, when we talk about Brexit, we tend to be more concerned with the impact on European markets, not necessarily the international ones.
With respect to EEA workers, however, things are more likely to change. Before commenting on the possible impacts of Brexit, it is crucial to understand the current position. One of the four founding principles of the EU and the freedoms enjoyed by EU citizens under the Treaty of the European Union 2007 is the free movement of workers across the EU member states. This is laid down in Article 45 of the TFEU as a fundamental right of workers and it includes the rights of movement and residence for workers, the rights of entry and residence for family members of EU citizens, and the right to work in another Member State and to be treated on an equal footing with nationals of that Member State. Some additional requirements apply in some countries for citizens of Member States that acceded to the EU in 2004.
The above mean that EEA nationals are not subject to any restrictions to come to the UK to find work. Their permission to work is virtually unrestricted. There are currently around 3.3 million EU citizens residing in the UK, out of whom 2.1 million are working in this country.
Brexit came as a shock to many, including political persons and organizations. It is an unprecedented event since the birth of the EU in the 1950's. Further, it is widely accepted that the majority of British Citizens opted to leave the EU in order to curb immigration. Although Brexit does not fully concern immigration, it is accepted that immigration played a very big role in voters’ decision to opt for it. Whether this was the right decision or not is subject to a lot of criticism. There are a number of scholar arguments on this subject with strong difference of opinion amongst them.
As of now, the laws and regulations have not yet changed. The UK government has not yet triggered article 50 of the Lisbon Treaty. Article 50 provides that “A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union […] The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period”.
Given that Article 50 has not yet been triggered, the legal rights of EU citizens have not been affected and therefore remain the same. Further, our Prime Minister, Mrs. May, has denounced the adoption of the Australian style ‘Points Based System’ to regulate EU immigration, although there have been discussions about implementing a work permit system but these are very vague.
It is an undisputed fact that the contribution of EU workforce to the UK economy is enormous and cannot be highlighted enough. Strictly from a legal point of view, the rights of the EU workers remain unhindered for the time being, at least at the time of this interview. How Brexit will be implemented is yet unknown, although it has become a political tug of war between Westminster and Brussels. Certainly we are all looking forward to seeing an acceptable and reasonable deal.
UPECO: What are the rights and obligations of foreign workers?
As I said earlier, EU citizens enjoy freedom of workers across the EU Member states. The UK has implemented the right of free movement of EEA nationals and their family members into national law under the Immigration EEA Regulations. It allows European citizens and their family members to live and work in the UK without explicit permission. However, this is not an unrestricted right.
In order for EU workers to enjoy the full rights under the said Regulations, they must also become “qualified persons”, which means that they have to work either as employed or as self-employed or actively seek a job, unless they are students or self-sufficient persons. Implied is of course their additional obligation to pay taxes on any income received or profits made, which I am sure you already know given the nature of the services your business is providing. Article 45 of the TFEU also entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, including the right to seek government benefits where need be based on legitimate grounds and proper assessment, and access to the NHS and education system in the UK.
However, the position is different for international workers, ie. those who do not benefit from the EU Regulations. The rights and obligations of such workers largely depend on the type of leave to remain the hold in the UK and vary according to any restrictions attached therein. While international workers are entitled to NHS access, there is a prerequisite immigration health surcharge fee that has to be paid upon making an application for leave to remain in the UK. However, unlike UK and EU citizens, international workers are not entitled to UK government benefits at any time unless they become “settled” in the UK or acquire British Citizenship.
International workers may only be employed in the UK if they have work permit, the requirements of which are depicted by the UK immigration rules, which is a totally separate set of rules. As said earlier, the UK has kept national immigration law (the "Immigration Rules") separate from the implementation of the European law (the "EEA Regulations").
For work permit applications, the rules require, inter alia, that the applicant has an offer of employment from an employer in the UK and that the employer obtains a sponsorship license from the Secretary of State in order to be able to sponsor an international worker. Both the prospective employee and the sponsor have to fulfill a number of criteria for such applications to be successful and the Secretary of State must be satisfied that there are no suitable workers already living permanently in the UK for the vacancies. There is a right to apply to settle permanently in the UK after five years under this category.
On the other hand, there are dedicated schemes for entrepreneurs and investors under the immigration rules. The entrepreneur scheme entitles those with £200,000 in investment funds to apply for entrepreneur status in the UK and it does not allow successful applicants to take employment in the UK while they hold an entrepreneur leave to remain in the UK as they are expected to run their own businesses and create jobs in the UK. There is a right to apply to settle permanently in the UK after five years under this category.
The investor status requires applicants to invest £2,000,000 or more in UK government bonds, share capital or loan capital in active and trading UK registered companies. Successful applicants are able to work or study. There is a right to apply to settle permanently in the UK after two years for those who invest £10 million and three years for those who invest £5 million.
UPECO: What are the advantages of British Nationality in relation to employment and business rights?
Currently, British passport holders have visa-free entry or visa on arrival access to 175 countries and territories, ranking the British passport third in the world (tied with Finnish, French, Italian and Spanish), just after German (177) and Swedish (176). This makes British Citizenship one of the most popular nationalities in the world. Apart from that, there are many other advantages to holding British nationality and I would classify these as three-fold: domestic advantages, European advantages and international advantages.
A British National enjoys unrestricted rights to work and live in the UK. A British National can work as much as s/he wishes or engage in business and form a company here or be self-employed. A British National also has unrestricted voting rights, access to government benefits and the NHS is entitled to pension in the UK upon retirement.
While Brexit is not yet in effect, at least not at the time of this interview, British Nationals are also able to work and live in any EU Member State pursuant to the principle of free movement of workers under the TEU. Just like any EU citizen coming to the UK, British Nationals also have unrestricted access to other Member States of the EU and they can even register and establish businesses anywhere in the EU and carry out business activities. Although we cannot tell what the impact of Brexit will be at this moment, we are hopeful that Westminster and Brussels will both be able to reach a good deal on UK-EU relations to protect the business interests and working rights of both EU citizens in the UK and British Citizens elsewhere in Europe. If this happens, then we can hope that British passport holders will be able to work and live freely in the EU with minimal restrictions at least.
From an international perspective, British passport holders enjoy visa waiver agreements with almost all of the major and emerging economies in the world, including the U.S. and Canada. There are currently talks about bilateral treaty proposals with Australia, which will open a new horizon of business and working opportunities for British Citizens in Australia. It is of course true that these proposals are only just that and finalization of such deals and implementation will definitely take time; however, the possibilities are promising.
On a side note, I feel inclined to say that in a globalized world economy, British nationality holders do enjoy an added level of advantage when they travel to foreign countries. British Embassies and consulates around the world are well staffed and have maintained a good reputation of being highly efficient and prompt to protect British citizens and their rights. Therefore a British national who travels to a foreign country to explore business opportunities or look for a job can easily seek assistance from their local consulate and embassy when need be.
Last but not least, London has for the longest time been a leading global economy and financial center for international business and commerce and investment destinations. London is also the fifth- or sixth-largest metropolitan area GDP in the world. Despite the vote on Brexit, London continues being one of the “command centers” for the global economy and is likely to retain its position in the future. Having a UK based business or work experience from London is also seen as added value on anyone’s profile. Further, UK work experience is world recognised and accepted as highly transferable. I cannot therefore stress enough the endless benefits that British nationals enjoy when it comes to working and doing business in the UK.
UPECO: What can we expect after Brexit as far as employment and business is concerned?
It is hard to give a precise answer to this question at these early stages of Brexit, and I must say that there is split academic opinion on this issue. While a strong school of thought believes that Brexit will negatively impact on the future rights of international workers as part of a more stringent immigration system overall, however, there are contradicting arguments that it will become easier for international workers to come and work in the UK if there is a balanced immigration system between international and European workers.
British politics are at the moment undergoing a turmoil phase and the future will definitely depend upon how Mrs May’s administration negotiates with other EU leaders. Politics aside however, from the recent chain of events it seems that EU workers who came to the UK before the Brexit referendum will continue to enjoy their rights, which were conferred to them under the EU Regulations. Nevertheless, future EU nationals coming to the UK are likely to face some sort of immigration control and restrictions on free movement, which, as said above, remains to be seen.
However, an immigration curb on EU nationals may also mean an immigration curb on British Nationals in the EU. It may also invoke a shortage of workforce, and if this happens, this may, in turn, mean that there is a possibility that the national immigration law (the immigration rules) for international workers be relaxed in the future. It is unclear however, at this early stage, absent publication of any negotiations with the EU, to state with certainty how the study of a post-Brexit Britain will unfold.
The atmosphere surrounding UK economy and workforce is subject to much speculation at the moment. However, at this moment, it appears that it is unlikely that the UK will slip into another deep recession although there could be repercussion from the other EU counterparts.
UPECO: So what can we expect?
I believe that we can expect more business-friendly regulation because the government is likely to encourage more people and international investors to invest in UK’s economy and create more jobs. If this happens, then it is a logical consequence that the job market will strengthen and the need for skilled, semi-skilled and low-skilled workers will increase. So contrary to speculation, I subjectively believe that both business and job sectors in the UK are likely to experience a growth.