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Immigration and talent: the Brexit policy response

(Image credit: Image Credit: D Smith / Flickr)

On 29 March 2017, Prime Minister Theresa May sent the official letter formally invoking Article 50 and beginning the two-year Brexit divorce process. Despite being dynamic, innovative and resilient, techUK President Jacqueline de Rojas is clear that the tech sector is not ‘immune’ to the risks and challenges post-EU Britain will bring, with the outcome of the various trade agreements and commercial considerations critical for future success and growth.  

However, future immigration policy is arguably the most important factor on the table for the tech industry. Brexit Secretary David Davis has said a ‘sustainable system’ of immigration will take into account different industries’ needs including, it is to be hoped, technology and IT which relies on a stream of international talent to remain at the global cutting edge.   

The sector, more so than many others, needs international workers to bring the skills and experience that companies require to maintain their competitive advantage and continue to be successful.  Tech accounts for approximately 24 per cent of total UK exports and currently employs around 3 million people, roughly 18 per cent of whom were not born in the UK. One third of those are European nationals. 

Despite many varied approaches to plugging the skills gap more locally through apprenticeships, re-skilling, return to work schemes and programs within schools to encourage interest in tech careers, these mechanisms won’t address the problem in its entirety and will need time to take full effect. Access to international talent will, therefore, remain key for the industry’s continued success.

A possible immigration renaissance? 

Retro is cool. From Nintendo to Nokia, brands are making a habit of returning to their roots to come up with products and services that meet the demands of new generations. In similar fashion, might the UK Government release an updated version of its previous immigration system and apply it to EEA nationals? Or, will the government take an Apple-esque approach and launch a brand new and futuristic immigration system? 

The variables involved in the Brexit negotiation are enormous, and reach far beyond agreeing what happens to EEA nationals in the UK and what happens to UK nationals in the rest of Europe. Just on immigration on an internal, United Kingdom, front there are many areas of concern to be resolved, including:

  • The Labour Party’s Brexit tests, one being for any deal to demonstrate a ‘fair migration system for UK businesses’.
  • Scottish independence and the prospect of more borders to manage politically and practically.
  • The question of Northern Ireland’s sensitive border issues and whether home rule may be restored to the only part of the UK that has a land border with Europe.

These are only a few examples of the internal battles to be fought.  Alongside extending this to negotiating with individual European countries who each want their own chance to contribute to filling skills gaps with their own migration agenda, there are also Australia, China and India, among others, to be considered, which could turn negotiations into a quagmire of complexity.  

As a result, the Home Office is unlikely to be either retro or futuristic in practice. Instead of the Nokia 3310 or the iPhone-8, the Home Office is likely to take the existing system, with all its flaws, hurdles and delays, and expand it with more categories, caps and complexity. To continue the metaphor, a bit like taking the exploding Samsung Galaxy and remarketing it as version 2.0.

What does it mean for the tech industry?

Most immediately, the fact that the UK has handed in formal notification to withdraw from the UK does not currently affect the rights of EEA nationals.  Home Secretary Aber Rudd has made assurances that EEA nationals’ rights will not change without the approval of the UK Parliament.

Looking ahead, although it is impossible to predict what the immigration system will look like post-Brexit, it could be broadly similar to the UK’s non-EEA work permit mechanism.  

The current system for non-EEA nationals is the Points Based System and has been in place since the end of 2008. This sees employers taking full responsibility for any migrants they sponsor, with the implications for non-compliance ranging from revoking the ability to sponsor skilled workers at all, to hefty fines or even prison terms in some circumstances.  There are many ideas being touted for how a transition to a similar points-based system could be implemented more broadly, some more realistic than others. At the very least, though, it seems likely that there will be separate rules for lower and higher skilled workers and potentially across different industries. 

Overall, one thing does seem clear; free movement of people was top of the referendum agenda and Theresa May has confirmed it will not proceed unchecked. This means that hundreds of thousands of people already in the UK will need to be documented and hundreds of thousands of people will need to be prioritised and accommodated by an immigration system going forward.

All employers, including in the tech and IT sectors, therefore need to know which of their employees are affected by the changing European regulations and which already have a right to permanent residence. Now that Brexit is upon us, more and more businesses are supporting their employees to submit applications for evidence of their right to live and work in the UK, where they have not felt the need to do so in the past. Furthermore, in the very near future, some Europeans and their families will have to do more than just show their passport at the airport in order to gain residence rights in the UK. Practically then, those that were here before the coming changes will need a mechanism to differentiate themselves from those coming after. 

Over the coming months, it is critical that the tech industry has its voice heard and informs this debate and the development of legislation that recognises the contribution that tech and IT, and its globally mobile workforce, make to the UK economy. When the post-Brexit lines are drawn, we all want to look back and at least be able to say that we were part of the discussion and contributed to the formation of a system that, with whatever flaws it might have, is built with the interests, needs and ambitions of the sector at heart.  

Naomi Hanrahan-Soar, Senior Associate at law firm Lewis Silkin
Neil Jennings, Associate at law firm Lewis Silkin
Image Credit: D Smith / Flickr