Election 2019 Outcome
What does the result mean for immigration policy and Brexit in 2020?
The 2019 General Election produced a decisive outcome, resulting in a conservative party majority of 80 seats in the House of Commons. This means that the long period of political uncertainty is over and the future trajectory of Brexit, at least until the end of 2020, is now clear.
The fact that the Conservative Party won a significant majority on the back of a manifesto commitment to “Get Brexit Done” means that there is a further democratic mandate to leave the European Union and there is no realistic prospect of a second referendum in 2020.
Furthermore, the scale of Boris Johnson’s parliamentary majority means that he will have the authority to shape the future destiny of Brexit free from the pressures of the various factions in Parliament. All of his MPs signed up to his manifesto and they will be required to endorse the Withdrawal Agreement Bill (WAB) when it comes before Parliament again, possibly as early as this Friday.
What happens next?
Withdrawal Agreement Bill (WAB)
The WAB is the legislative mechanism, required under the EU (Withdrawal) Act 2018 that provides parliamentary approval of the Withdrawal Agreement and Political Declaration negotiated between HM Government and the European Union. It also confirms EU exit day as 31 January 2020 at 11pm.
The previous Government was unable to pass this legislation because of the stalemate in Parliament regarding the shape of Brexit and whether a further referendum should be required to ratify a Brexit deal. The Government’s new majority in Parliament makes it unrealistic to imagine the legislation will not pass.
Furthermore, the Prime Minister could use his enhanced authority to make amendments to the Bill including, for example, diluting or removing entirely the requirement for the Government to consult Parliament on its objectives in the coming EU-UK future relationship negotiation, including putting any trade negotiating mandate to a vote. Furthermore, the PM has already committed to removing clause 30 of the Bill, which allows for the transition period to be amended beyond 31 December 2020 if MPs vote for it. In doing so he underlines his determination to secure agreement on a new trading relationship by the end of 2020, with the possibility of “a no-deal” World Trade Organisation (WTO) outcome underpinning (and injecting urgency to) the negotiations.
Whilst it is true that Brexit is a “process rather than an event”, the point of no return will be at 11pm on 31 January 2020 when the UK will formally leave the EU’s legal structure and enter a transition period. Given the cost of future re-admission (joining the euro, the Schengen free movement zone and losing the UK rebate) the die will be cast for a generation or more.
According to the current WAB, the Government must make a statement to the House of Commons setting out a “statement of objectives” for trade and other aspects of the future relationship with the EU within 30 sitting days after 31 January. The statement must be approved by both Houses of Parliament before talks can begin in Brussels. Again, the new parliamentary arithmetic should make this a formality.
2020 will be dominated by discussion of the type of trading relationship the UK wishes to have with the EU in the future, and the extent to which the UK is prepared to align with EU regulatory structures. Prime Minister Johnson negotiated an amendment to the Political Declaration to emphasise the UK’s determination to secure a free trade agreement (FTA) with the EU rather than a “common rulebook”. Many observers, including Michel Barnier (the EU’s chief negotiator) have voiced doubts about whether it will be possible to agree an FTA in the eleven months between the end of January and the end of December.
Under the terms of the Withdrawal Agreement the Government has a “one-time” opportunity to extend the standstill transition for up to two years and this must be agreed by 1 July 2020. The Prime Minister has repeatedly said that he will not seek such an extension, although his new mandate would enable him to do so if he perceives it to be in the UK’s interests. On the contrary, the PM intends to amend the WAB to prevent Parliament from legislating for an extension.
A more likely scenario would see a “basic” FTA being reached in 2020 with further time allotted to agreeing more detailed and comprehensive future arrangements over the months and years to come.
EU Citizens’ Rights
With “no-deal” an unlikely prospect, at least until the end of 2020, the EU Settlement Scheme (EUSS) will continue to be available to EU citizens in the UK as well as to those who arrive prior to the end of 2020.
- EU citizens entering the UK prior to the end of December 2020 will be eligible to apply under the scheme.
- EU citizens who have resided in the UK for a five year period can obtain Settled Status (Indefinite Leave to Remain).
- EU citizens who have resided in the UK for less than five years can obtain Pre-Settled Status (Leave to Remain) and will be eligible for Settled Status once they have completed five years’ continuous residence, regardless of the final outcome of Brexit negotiations.
- Qualifying EU citizens will have until the end of June 2021 to apply under the scheme.
The likelihood of a no-deal outcome at the end of January has diminished significantly given the fact that the UK and the EU have agreed a deal and the Government has the majority in Parliament that it needs to pass the legislation. In theory if parliamentary time expires before 31 January, or if the European Parliament fails to ratify the agreement in January, a no-deal scenario could still arise. The spectre of no-deal is more potent at the end of 2020 given the short amount of time available and the Government’s stated refusal to countenance an extension.
It is worth reminding ourselves of the policy for EU citizen’s rights in a no-deal scenario on 31 January:
- Free movement will end immediately on exit day.
- EU citizens already in the UK on exit day will be eligible to apply under EUSS.
- EU citizens arriving in the UK between exit day and 31 December 2020 will be admitted freely and will be permitted to live and work in the UK for a further three years by applying under the Euro– Temporary Leave to Remain scheme (Euro-TLR).
If a no-deal scenario occurs on 31 December 2020 EU citizens arriving after the end of 2020 will be required to seek leave to enter the UK under the new immigration framework to be launched at the beginning of January 2021. EU citizens arriving in the UK on or before 31 December 2020 will be eligible to apply under the EUSS and must do so before the end of June 2021.
A New Framework for Immigration Control
Freedom of movement for EU citizens will continue throughout 2020 as part of the transition phase. During this period the Government will develop and legislate for a new system of immigration control based on equality of access and a “level playing field” of entry criteria.
The Migration Advisory Committee (MAC) will publish its report on salary thresholds and the Australian-style points based system (PBS) in early 2020. This will be an addendum to the work they completed in 2018 on recommendations for a post-Brexit immigration scheme.
The new PBS is likely to be introduced at the beginning of 2021. It is anticipated that emphasis will be on qualifications, previous earnings and having a UK job offer. It remains to be seen how different the new PBS will be to the models that have been followed since 2008. It is possible that the new “Australian-style” scheme will be a further iteration of the previous HSMP/ Tier 1 (General) routes of entry.
Temporary routes are likely to be made available for young people who wish to live in the UK for periods of up to two years in lower skilled roles. This will seek to address problems identified by many sectors of the economy (hospitality, construction etc.) that rely on the current free supply of labour from the EU.
Other schemes will include a NHS Visa, providing fast-track entry and reduced visa fees for qualified doctors, nurses and other health professionals as well as a Post-Study Work Visa allowing graduates from UK universities to remain in the UK for two years to take any employment.
The Outlook for 2020
It appears that the parliamentary impasse has been broken and 2020 will be a transitional year whilst the Government focusses its resources on negotiating the UK’s future relationships with the EU and the rest of the world (the US trade negotiations will accelerate in advance of the November presidential election).
Assuming the WAB passes in January, EU citizens will continue to be protected until the end of 2020. Employers can therefore focus instead on planning for a post-Brexit environment at the beginning of 2021.
The threat of no-deal will undoubtedly re-emerge in Q4 2020 as time pressure begins to surround the negotiations. We can expect plenty of grandstanding and implicit (and explicit) threats as the autumn approaches and a WTO outcome becomes a possibility.
Whilst the political environment will be significantly less febrile in the coming year, we are all likely to be holding our breath again as 2021 and the real Brexit day come into view.