In our May 2017 edition of Up to Date, we considered the positions of the two main political parties on Brexit and immigration in the run up to the General Election in June. Three months later, with the election a dim and distant memory and the European Union (Withdrawal) Bill, also known as the "Repeal Bill", making its way through Parliament, we take stock of where were are now.

We also consider whether there is anything we can learn from the recent commission of a Migration Advisory Committee (MAC) Report, which will run alongside the Government's own fact-finding and evidence gathering over the coming months.

The Migration Advisory Committee report

In summary, the UK has until March 2019 to negotiate and agree the terms on which it leaves the EU. What that departure looks like, and the ultimate impact of the UK leaving the EU on the immigration status of EEA migrants, is far from clear. The Repeal Bill was introduced to Parliament on Thursday 13 July 2017. However, the Bill was decidedly quiet on any issues relating to immigration, which will be set out in a separate immigration-specific bill, to be published during 2018.

There does, however, appears to be a more tacit acceptance that the content of any such immigration bill and future immigration policy more widely is likely to depend on the extent to which the UK government is able to succeed in its negotiations with the remaining 27 Member States over the coming two years.

To help inform those negotiations, in July, the government instructed MAC to examine the contribution made by EU nationals to the UK economy and society, and draw up proposals to align the UK immigration system with a modern industrial strategy.

The government outlined its ultimate objectives in its letter to MAC, stating its intention to "achieve sustainable levels" of net migration and introduce a phased system away from the current free movement regime. The letter suggested that EU nationals will still be able to come to the UK during a transitional period after Brexit but will have to go through a “registration and documentation” process, which may last until 2022. This transitional period will be followed by the final, third phase, which will determine the long-term arrangements relating to the migration of EU citizens based on the UK’s social and economic needs "and reflecting our future deep and special partnership with the EU".

Consultation on areas identified by MAC for their report closes on 27 October 2017, with the MAC report due back by September 2018.

What is clear, therefore, is that the impassioned pre-General Election rhetoric, with the government's various no-nonsense pledges to crackdown on immigration from the EU, appears to have been tempered by the General Election result itself. The government's more recent stance – whilst still evolving– is more pragmatic and implicitly acknowledges that both EU citizens, employers and the UK economy will benefit from a longer transition than the two year countdown the triggering of Article 50 initiated. 

Labour's new Brexit policy

Of course, we cannot rule out the possibility of another General Election (or two at the current rate) before the March 2019 "cut off" date. Perhaps with that in mind, at the end of August, the Labour Party attempted to put some meat on the bones of their previous Brexit policy, which had been lamented by many as incoherent.

Specifically on immigration, the Labour Party acknowledges that Brexit means the end of freedom of movement and that there will be a change to Britain's immigration system, but similarly pledges to implement "fair immigration rules" and protect the rights of workers already here. Unfortunately, its current policy does not offer any further detail, save suggesting that the UK should remain a member of the customs union and single market for good, which may mean concessions on immigration. It is expected that this policy will evolve over the coming months as Brexit negotiations continue.

Whilst those negotiations are afoot, it is unlikely we will get a clearer steer on what the final immigration picture looks like, and the uncertainty of such will undoubtedly lead to issues with recruitment from the EEA in the short term. However, it is important to remember that as long as the UK is within the EU, there is no change to the immigration status of EEA migrant workers based in the UK - they are able to continue to exercise their right of free movement, and work freely in the UK. 

Sarah Harrop

Sarah Harrop

Partner, Employment & Immigration

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