It has been an eventful time for immigration on both sides of the Atlantic. In the UK prime minister May triggered Article 50 and began the Brexit process. For the US 2017 saw the inauguration of president Trump. These two major events and the current political attitudes towards immigration have created major changes in immigration policy in both countries.
Only finalisation of the Withdrawal Agreement will bring certainty of how Brexit could affect pan-European business travel. It is anticipated that nothing will likely change until the proposed cut-off date of 29 March 2019. Negotiations on the UK's access to the single market will affect the immigration status of employees across the EU and UK thereafter. Businesses should consider the skills and talent within the resident labour market in these regions and how this may affect business goals. Businesses need to understand the rights and immigration status of all of their EU workers to ensure they continue employing them legally post-Brexit. They should also consider whether any employees could qualify for a work visa.
While the final shape of Brexit is unclear, it has been agreed in principle that the overall objective of the Withdrawal Agreement with respect to citizens' rights is to provide reciprocal protection for EU and UK nationals. As such, any EU nationals already living and working in the UK will be able to remain in the UK post-Brexit. It is believed that EU nationals should also be able to move to work in the UK during a 'transition' phase, most likely of two years.
EU nationals who arrived in the UK prior to the cut-off date and have accrued five years' residence could apply for ‘settled status’ under UK law. Existing residence documents under the current EU law will be invalid post-Brexit and will need to be replaced. It has been proposed that all EU nationals who entered before the cut-off date but do not qualify for settled status should apply for temporary status to take them to the five-year qualifying point, but they should not expect guaranteed settled status.
How Brexit may affect companies seconding employees across Europe
It is too early to say. The government has asked the Migration Advisory Committee to review the post-Brexit UK labour market and publish a whitepaper in the coming months. It seems unlikely based on government sources to date that similar freedom of movement requirements will remain, so future business travellers may require permission to enter and work in the UK (and reciprocally different EU countries). It may be some time until we know exactly how immigration will be managed after Brexit.
Currently, in most cases there is no issue with posting UK workers to EU countries and vice versa. EU and UK nationals are reciprocally attractive candidates for employers as there is no need to worry about right to work in most jurisdictions.
Businesses can currently post non-EU nationals within EU jurisdictions to work on short-term projects under the 'Van der Elst' concession. This might not last post-Brexit. It is anticipated that the UK government might remove this concession entirely.
An immigration crackdown was a signature issue for Donald Trump’s 'Put America First' presidential campaign.
This drive for the reduction of immigration is affecting legal entry into the US. Business travellers are facing heightened scrutiny at entry points. A number of employees who have travelled to the country without issue for years as business visitors have reported being stopped and questioned more extensively about the nature of their activities.
US customs and border protection has also increased searches of information on electronic devices at border posts. Officers may ask for the password/encryption to unlock these devices. It is important that employees travelling to the US are aware of company protocols regarding the storage of sensitive information either remotely on the Cloud or in a separate medium prior to travel. All employees travelling to the US should be advised regarding what they may and may not carry and the types of questions they may be asked if they are stopped at the border.
Steps businesses can take to protect employees
The best advice for businesses is to know their workforce. Businesses need to determine which employees may be affected by the changes of immigration policies under the Trump administration and Brexit. With the tightening of immigration controls on both sides of the Atlantic, international businesses that are particularly reliant on foreign nationals should develop and implement policies before their employees travel so they can prepare for upcoming travel and for potential work permit applications. All employees should also know their rights and the implications of changes that may affect them. Once the business and employee are aware of upcoming travel, they should prepare in advance as most government process times are rather lengthy.
The world of immigration is in flux and becoming increasingly complex. There will unquestionably be more changes in the coming months and years. It is recommended that businesses keep up-to-date with these changes and understand the numbers of employees who might be affected.
Elaine Kumpula is a partner and head of global mobility practice, Claire Nilson is a counsel, and Hodon Buraleh is a paralegal at Faegre Baker Daniels