Understand Your Rights. Solve Your Legal Problems
Further into our immigration focus, Lawyer Monthly hears from Andrew Osborne, Partner at Lewis Silkin LLP on the potential Brexit effects and impacts on the sports sector, and the business therein. Here Andrew talks about the complexities involved in sports transfers, and touches on his and the firm’s thought leadership in the sports world.
You deal in UK sports and immigration matters; what kind of complexities do you encounter as these come together?
The main concern when doing sports work is usually timing. When a new player or coach joins the team, the club wants them to be available as soon as possible. This can often be a challenge where the application is being made from certain countries. This also applies to their family members, but clubs are usually very good at supporting family members joining and ensuring their player/coach is settled very quickly. Immigration from this perspective is a very personal and emotional process. It's important we remember that the player/coach and their family are often relocating from the other side of the world and can be quite anxious. We work hard to be mindful of this and make the process as smooth and reassuring as possible. There is also the need for discretion - we are privy to information that the press and public would be very interested in, so confidentiality is crucial.
We also help clubs with pre- and post-season tours, and travel for international games. Players have such full schedules that arranging the logistics of appointments, and getting our hands on their passports for a few days, can be tough, particularly when the deadlines for a tournament are immoveable. We are lucky to have members of our team who are passionate about sport and are, as a result, aware of fixtures and training schedules. We know how to prepare applications with the minimal amount of impact on a player’s time.
So I would say the main complexity with immigration and sport is making sure applications are completed correctly and all the paperwork is in order within the allotted timeframe, with minimal impact on the player/coach. We take on the burden of this hugely bureaucratic process, away from the club and player, so that they can focus on what they do on the pitch.
What would you say are the biggest difficulties encountered in the transfers of employees between companies cross-border, and how do you navigate these?
Immigration is a very personal issue. The applicants we advise are going through a major change in their lives by transferring from one country to another. This involves all the stress of moving house but with added cultural, and sometimes, language barriers. Applicants also often have very strict time constraints with travel. They may even have moved out of their current accommodation while waiting for their visa. We need to make the visa application process as smooth as possible whilst working within a pretty inflexible system. It can often be frustrating and we need to be able to reassure and support the applicant as best as possible. We collaborate with them and their employer to make the whole process very smooth.
The introduction of additional priority and premium services in some countries (such as the US and Australia) has made the process a lot more efficient for those willing to pay. On the other hand, the introduction of the 30 day temporary Entry Clearance visa has put another timing consideration into the mix and can make the process even more complicated.
How may these difficulties change in the future, especially on the back of the recent Brexit vote?
The main concern is the pressure on the current system. While it is inflexible and requires us to do a considerable amount of planning to ensure there are no delays, the majority of applications we deal with go through without much incident. However, once there is an issue it is often very difficult to speak to someone and get an update or resolution. If the current infrastructure is expected to deal with EEA applications as well, I just don't see how it could cope. Pilots are currently running to test online systems which might ease some of the pressure, but again, if an application is particularly tricky or requires explaining, it requires a personal review and this might take months.
When it comes to transferring athletes between clubs at an international level, what are your top priorities for the client?
Over the course of the past few years we have worked with some of the top clubs in the UK and Europe. The objective is always a successful outcome for the client. The top priorities to achieve this outcome are to get the paperwork prepared early and accurately, minimise the impact on the athlete, assess the logistical issues and offer the best solutions. Transfers generally happen in August and January so we make sure those who deal with transfers are available and have capacity to deal with these matters immediately when they arise.
Can you detail a sports matter in which you have encountered particular challenges in the past? How did you apply your thought leadership in the field to this scenario?
The most challenging transfers have involved appeals, due to the player not meeting the automatic qualifying criteria for a Governing Body Endorsement. In this case, it is very difficult to plan the visa application and all our energy is poured into preparing the appeal. Once the appeal has been successful, we have a very quick come-down from the high of achieving the GBE, to finalising the paperwork and planning where the player will be eligible to submit their visa application. The player is often in the UK for the appeal, medical or negotiations, and then they usually have to leave and re-apply to return. This requires a lot of explaining and managing the player and club’s expectations of the process from the beginning.
Players are often transferred at a time when they are on holiday or on international duty, so the challenge again is the logistics of getting them to engage in the process and taking the time to submit the application.
Over the years we have built up a lot of contacts in various countries and we could not be as successful as we are, nor ensure such a fluid process for the player, without them.
You most recently authored a publication titled ‘Immigration programmes for low-skilled labour: alternatives to freedom of movement’; what were the conclusions drawn from this piece?
That the UK has never had to develop a low-skilled immigration programme across the whole labour market. Certain schemes to allow low-skilled labour into the UK have been put in place in the past for specific industries and these may be a model for a more general system to deal with low-skilled labour. It appears that any system will have some key features:
Do you have a mantra or motto you live by in service to your clients?
We really try to get to know our clients personally. There are other firms who do what we do, and at this level you would expect the lawyer to be competent and competitive, but knowing the clients you will be working with helps you deliver your advice in a way they will want to receive it. That’s what sets our service apart from the rest. Sport doesn't operate during office hours, so when your phone rings at 10pm on a Saturday you answer, not because it's your job, but because you know the person calling, have a relationship with them and you want to help them. I think that's important and why we try meet our clients in person regularly.
From chemicals, biocides and pesticides, to consumer products, tobacco, vaping products and food, our next thought leader thrives in a challenging environmental law landscape, and when it comes to EU prohibitions on chemicals, EU trade barriers and now Brexit, Marcus Navin-Jones, Partner at the Brussels office of niche law firm Keller and Heckman LLP, is well placed to assist.
Here Marcus talks to Lawyer Monthly about his and the firm’s thought leadership in the environmental law landscape, in particular the kind of cases he deals with, the implications of Brexit and the EU in this legal segment, and about the laws that he would like to see changed for the better.
What environmental issues surround most of the cases you deal with?
Chemical defence
Over the past 6 years or more, I have built a reputation primarily in the field of chemical defence, i.e. in defending the sale and use of certain chemicals in the EU. The frontline in chemical defence has been leading appeal cases before the European Chemicals Agency (ECHA) Board of Appeal (BOA) in Helsinki, Finland.
Over the past year or so, I have successfully led industry appeals in a number of cases before the ECHA BOA – to obtain an annulment of the requirements initially imposed by the ECHA. The Appellants included: Dow Corning and others (A-017-2015); Huntsman/BASF (A-012-2014); and TPP Registrants (A-018-2015).
Before that, I assisted on the first appeal regarding REACH Substance Evaluation, which established the ability for REACH registrants to bring so-called group or collective appeals before the ECHA BOA. This had never happened before.
I also counselled, and led the argumentation in the seminal Honeywell case – which was the first case to proceed to Oral Hearing before the ECHA BOA.
In addition to the appeal cases before the ECHA BOA, I increasingly advise and take cases before the EU Courts - such as the current Esso Raffinage case before the General Court (T/283-15).
Consumer products - I advise on product safety and product liability issues regarding consumer and other products, particularly consumer products that are directly impacted by EU chemical legislation such as:
EU and UK market access and barriers to trade (including BREXIT issues) - Having worked at the European Commission on issues regarding free movement of goods, my background is in securing market access for goods entering the EU Single Market and other European markets. Following the UK referendum on EU membership, I increasingly advise on Brexit issues and on issues regarding free movement of goods issues and barriers to trade.
What are the common avenues of resolution for these types of cases? Are there particular complexities involved?
EU chemical law is particularly complex. With scientists that work within K&H itself, we often advise on issues outside the domain of consultants or other law firms. Regarding the Chemical Defence work, we experience an increasing desire to settle cases before an ECHA BOA decision.
Have there been any consequences in your environmental law work pertaining to the recent Brexit vote and the linked EU law?
Since June I have spoken widely on Brexit and its impact on the chemical industry in front of different audiences, including CEFIC (the European Chemical Industry Council) members, but also at conferences in Washington DC, US; Toronto, Canada; Nice, France; and elsewhere. Since the 23rd June 2016 referendum, there has been significant increase in the number of questions regarding Brexit not just from UK companies, but also from US and other companies.
In the short term, there may be divergences in the interpretation and enforcement of EU law in the UK. In the longer term, the impact on UK Chemical legislation could, potentially, be significant. The impact on EU chemical legislation may be comparatively smaller but, potentially, no less important.
As a thought leader, what Belgian or EU environmental legislation do you believe could/should be amended in the near future?
One of the core issues for the chemical industry on both sides of the Atlantic will be the extent to which TSCA reform (in particular the Frank R. Lautenberg Chemical Safety for the 21st Century Act amending the US Toxic Substances Control Act) will lead, or not, to a convergence of chemical policy with EU law in the future. In particular, one of the questions being whether risk management measures adopted in the EU will also be adopted in the same way, and relate to the same substances, in the US and vice versa. Where regulatory action is considered in one jurisdiction and then rejected on valid grounds, it would be helpful to have a similar and consistent approach elsewhere.
In the EU, the Court Ruling in case C-106/14 regarding calculation of the 0.1% threshold weight by weight presents significant practical and pragmatic challenges for industry and law enforcement bodies in practice. Improvements could be made to the BPR, REACH and related legislation such as the REACH Implementing Regulation on Joint Submission and Data Sharing, etc. For example, implementation of the requirements regarding vertebrate animal testing only as a last resort, could be improved. The revision of the GPSD will likely be of importance to downstream users and therefore the upstream suppliers. The New Tobacco Products Directive contains requirements relating to e-cigarette and e-liquid products that are, arguably, not enforceable.
As a thought leader, how are you helping to change the European/Belgian environmental legal landscape, in terms of chemical regulations, waste, or packaging?
ECHA policy and approach to, for example, REACH Dossier and Substance Evaluation, has changed in response to the cases brought before the ECHA Board of Appeal – both in those cases where the ECHA BOA has issued a decision in favour of industry, but also in those cases where the ECHA BOA has not issued a decision, or issued a decision in favour of ECHA. I currently have another case before the ECHA Board of Appeal relating to Substance Evaluation and the extent to which REACH registrants can provide sensitive information on downstream exposure and uses (SI Group-UK Ltd and Others, A-006-2016), giving the ECHA Board of Appeal the opportunity to positively influence and clarify ECHA policy.
How does being secretary, and founder, of the EU Chemicals Board of Appeal Forum contribute towards your thought leadership in this legal segment?
The EU Chemicals Board of Appeal Forum was established as a means of exchanging information on ECHA BOA decision-making. It is not associated with ECHA, with one particular trade association or with one particular company. It is therefore a truly independent group of experts primarily populated with academics and other commentators. Their views and insights, particularly with the insights from other Boards of Appeal, is particularly interesting in understanding how the ECHA Board of Appeal compares to other BOAs in the EU, and the procedural and other requirements the ECHA BOA should therefore adhere to. I have also convened conferences and working groups, lectured and published academic pieces on the ECHA Board of Appeal. A Legal Review of EU Boards of Appeal in Particular the European Chemicals Agency Board of Appeal .
As a thought leader, do you have a mantra or motto you live by in service to your clients?
I believe there should be a direct correlation between our client’s success and our success as a firm. Success can be difficult to define but, in essence, I want every client to be bigger, stronger and better established in the future, than they are today – and I want that success to be a direct result of what we, particularly I, have had direct involvement with. Our success is our client success.
Next up on our employment focus is Archin Talpade, Principal and Founder of AT Law, in London. Archin talks to Lawyer Monthly about the potential avenues employment law could take in terms of Brexit, the necessity for pre-thought prevention in employment dispute matters, and the ways of dealing with redundancies in a business.
Archin Talpade runs A.T. Law Solicitors in Mayfair. A City career took second place to his (and his clients’) desire to provide (and receive) quality legal services comparable with the City but at competitive rates. Archin took the plunge and started his firm in May 2006 as a boutique employment law provider. That decision paid off and 10 years later, Archin is recognised by clients - ranging from multinationals to private offices to senior employees - as an integral part of their teams.
Archin’s firm specialises in two things – his clients’ businesses and their people. Many law firms these days tend to focus either on acting for employees and employers to a large extent; rarely do firms act for both in equal measure. Archin considers himself privileged to be regularly instructed by both employers and employees at all levels of business, from board rooms of multinationals to senior executives in board room disputes. Because of Archin’s experience in this regard, his firm has developed a strong and distinctive style and ability to understand the mindset and strategy of opponents or the buyers and sellers of businesses in a TUPE transfer situation. This provides Archin’s clients with a clear advantage when assessing the often critical, sensitive and confidential issues his clients could be faced with.
Archin is often consulted where there are sensitive and often critical legal and commercial issues at stake that require an immediate, solution driven and result oriented approach. Archin’s competitive edge over the last decade has been founded on providing quality advice but at reasonable rates.
In advising businesses on employment matters, what do you find are the most surprising pitfalls they never considered?
I’m instructed by a growing number of businesses which have their headquarters abroad. The executives and management teams I work with are highly knowledgeable and skilled at doing what they do. As such, I find that they’re very switched on in recognising when they might need advice and taking that advice before they actually arrive at a pitfall. The same is true of senior individuals, whether at plc level or in the financial services world, these are people who have the foresight to understand when there might, for example, be a dispute brewing, sometimes many months before they reach a potential impasse. My job in those situations is to guide the business or the individual around any pitfalls I or they might have foreseen, usually in the most elegant and least contentious way possible.
When there are pitfalls, which for whatever reason have not been foreseen, these usually in my experience arise where there may have been factors which are almost, you could say, ‘black swan’ events – for example, when litigating, I’ve been faced with errant employees recording meetings with their colleagues or managers without permission. Such recordings may lead to some potentially embarrassing moments for clients but it’s then a question of dealing with such events in the most tactical and beneficial way for my clients.
Are there particular challenges involved in advising large and busy businesses in the City of London on employment matters?
Most clients, be they commercial enterprises or individuals, are savvy business leaders and there’s not much that they’ve not seen or are unaware of. So to advise clients of the type that approach me you need to be able to think creatively and respond rapidly and pro-actively. My clients are not looking for run-of-the-mill advice that a solicitor reading say an online legal service or textbook , might be able to deliver. They’re seeking solutions which will probably require a degree of ‘advocacy’ - whether that advocacy is carried out around a Board room table, over a series of conference calls, in presentations to prospective purchasers or sellers of my clients’ businesses and/or services or before an Employment Tribunal. It’s really the art of persuasion, in one form or another, married with an in-depth understanding of the practical implementation of the law, which brings about the desired results for my clients.
You have previously advised CEOs of FTSE 100 companies negotiate their exit packages; what kind of complexities did this involve?
Whether you’re dealing with a CEO or any other senior employee, the law is the same – it’s the scale and the tactics that we employ that differs. The key with any client - but in particular a CEO or senior executive - is to ensure that they’re fully aware at all times of the position and are on-board with the approach and tactics, which have to be deployed sometimes within hours of the first meeting. Particular complexities could also include concluding negotiations sometimes within 24 to 48 hours given the sensitivity of such matters on the share price of a plc. Senior executives above all value precision in advice, determination, speed and quick wits!
You have also previously engaged in defence cases surrounding employment matters; what do you find is the best way to approach redundancy claims?
With a degree of empathy for all involved. My company clients, who are usually well versed in dealing with all aspects of employment law including redundancies, understand that first and foremost they’re often dealing with a life-changing situation for their employees, sometimes of many years standing. It’s therefore a concern for many of my clients that they operate fairly – which is not always simply about money – it’s about the human aspect of employment law.
Do you work mostly alone in the capacity of employment law, or alongside a team?
It very much depends on the case. If it’s a large case with different strands which might cross over into employment law, corporate and tax, then I work alongside colleagues, counsel and consultants specialising in those areas.
On the back of the recent Brexit vote, do you expect much change in the realms of employment law and the demand in legal services?
It‘s not entirely possible to predict exactly how the UK's laws might change following the UK’s exit from the EU. Changes to UK laws will likely stem from the arrangements the Government applies when formalising our departure from the EU. There are broadly two ways of dealing with our exit: the first way is a model based on us joining the EEA perhaps in the same vein as Norway; or secondly, the Government of the day tailoring a custom-built UK- EU relationship. The ‘Norway Way’ would entail the least change, as EU law on the whole would likely remain more or less intact. The ‘UK-Tailored-Way’ could in theory lead to a more significant degree of change, particularly to laws which are “EU-Centric” such as certain aspects of TUPE.
In practice, it remains to be seen whether any Government would wish to cause such a potentially seismic change immediately following the implementation of Brexit - which would then have a major impact on employers and employees. Any change is likely to be carried out over time and after consultation with employer groups and employee groups including the CBI and Unions.
As a thought leader, if you could implement changes to facilitate your work in the UK employment landscape, where would you start?
It’s apparent to me that the landscape of employment – not just employment law – is shifting; this can be evidenced by, say, the number of commercial properties which remain vacant for longer, the rise of technology in reducing the numbers and types of jobs (e.g. in the retail sector and financial services sector), the outflows of jobs abroad and the continuing popularity of flexible working patterns. It’s a debate that’s been raging across academia, but is also incredibly relevant to all of us in the UK economy:- how do we preserve skilled paid jobs to facilitate the continued success of the UK? The answer does not solely lie in changing or reducing the impact of employment laws or immigration laws. The answer, I think, partly lies in having a pre-eminent education sector which builds the workforce of tomorrow today while co-ordinating a more holistic and less prescriptive approach to employee relations by both employer and employee groups – eventually leading to a genuine economic and business partnership. That, I think, is the challenge for this country - and the solution doesn’t just lie with the lawyers or legislators.
The Parliament of the United Kingdom is the supreme legislative body - it decided in 1973 to enter the European Economic Community and in 1992, to sign the Maastricht Treaty, thus creating the EU.
Entering into the European structures caused implications for the next 43 years of the UK’s rule of law, economics, structure of society and culture, as the legal, economic and comprehensive taking into account culture, views, habits etc. migration/ immigration began.
Immigration/ Brexit & single market access
Indeed, the invaluable influence has always had an access to a single market.
The common market, the Treaty of Rome’s main objective, was achieved through the 1968 customs union, the abolition of quotas, the free movement of citizens and workers, and a degree of tax harmonisation with the general introduction of VAT in 1970. However, the freedom of trade in goods and services and the freedom of establishment were still limited due to continuing anti-competitive practices imposed by public authorities.
The lack of progress in the achievement of the common market was largely attributed to the choice of an overly detailed method of legislative harmonization and to the rule that required unanimity for decisions to be taken in the Council. According to the Cecchini report (‘The cost of non-Europe’), presented in March 1988, this was extremely expensive for the economy, costing between 4.25% and 6.5% of GDP. In the mid-1980s political debate on this issue led the EEC to consider a more thorough approach to the objective of removing trade barriers: the internal market.
The Single European Act entered into force on 1st July 1987, setting a precise deadline of 31st December 1992 for completion of the internal market. It also strengthened the decision-making mechanisms for the internal market by introducing qualified majority voting for common customs tariffs, free provision of services, free movement of capital, and approximation of national legislation. By the time the deadline passed, over 90% of the legislative acts listed in the 1985 White Paper had been adopted, largely under the qualified majority rule.
The single market refers to the EU as one territory without any internal borders or other regulatory obstacles to the free movement of goods and services. A functioning single market stimulates competition and trade, improves efficiency, and raises quality.
The EU single market for goods accounts for about 500 million consumers and 21 million small and medium- sized enterprises. The EU single market for services accounts for over 70% of all economics activity in EU and similar proportion of its employment.
In conclusion, a fully functional digital single market is a crucial feature for the European business, including the British one. One must bear in mind that the EU single market promotes innovation; contributing 415 billion Euros to the EU economy each year.
The European Commission works on removing the last barriers in internal trading and preventing the creation of new ones. It applies Treaty rules prohibiting quantitative restrictions on imports and exports (vide article 34 to 36 TFEU) and manages the notification procedures on technical regulations (2015/1535).
The European Commission monitors the application of EU law and can launch infringement proceedings against EU countries that do not comply. It also monitors the functioning of the single market, producing evaluations and key economics reports. In cooperation with the local partners namely EU countries, the European Commission is organizing a series of various workshops all over the EU member nations to develop better understanding of the collaborative and shared economy, to identify the most innovative business models, to uncover real risks and regulatory barriers, and to debate the most appropriate form of regulations.
In the case of Brexit, and taking into account the prospective intentions to limit the free movement between the UK and the EU, the option that excludes the single market access is highly probable, but is that a price that should be paid by British businesses?
On the other hand, in the case of aiming towards single market access one must bear in mind the question: who should provide goods and services? There is no unlimited movement of services and goods if there is not enough of the human factor to provide them.
The wider the access to the single market, the more business (namely trade, goods, whole range of services) develops and the more places of work are being created. Therefore a lack of access to the single market would cause an increase in unemployment as a lot of international companies have their branches in the UK and will not be able to provide their services and goods freely, thus the employees will not be needed anymore.
In addition one must bear in mind that the price of opting towards exclusion from the single market (due to the immigration factor permanently raised during the leave campaign) is much higher than the threat of increase in unemployment, and duty customs which will influence the prices for everyone living in the UK, especially in the cases of having a holiday abroad, buying a property abroad, or buying anything abroad via eBay for instance. So the question is whether the British society and British politicians are to pay the price of issuing Brexit without access to the single market as it is obvious that the British economy, particularly London, will not.
Benefits/ Brexit/ Immigration
One of the essential factors promoted by the ‘leave’ campaign was the frustrating issue of benefits for migrants.
David Cameron announced victory and pledged to campaign with “all my heart and soul” to keep Britain inside the EU after the Decision of the heads of state or government, meeting within the European Council, concerning a new settlement for the UK within the EU was struck on 19th February 2016 to redraw the terms of the UK’s membership.
The Decision clearly states that: "It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union. The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom."
Leaders of the 27 member nations agreed to:
In conclusion, David Cameron was granted almost all of his demands, therefore if anybody voted to leave because of benefits for migrants, it was a result of the lack of proper information in relation to the decision made on 19th February 2016.
Brexit/ immigration/ Dublin Regulation
In the wider perspective of the immigration issue, Brexit influences the United Kingdom's situation also in relation to immigration beyond EU borders, namely refugees and asylum seekers.
The Dublin Regulation - establishes which of the Member States is responsible for the examination of the asylum application. The main approach of an updated Dublin Regulation is that the country where the asylum seeker arrives has to process the application and is responsible for them. In case of Brexit, the United Kingdom will not be covered with this Regulation anymore, thus dealing and searching for a solution to such a difficult situation connected with the refugees looking for a shelter to protect their lives will be the sole initiative of the UK.
Continuing on with our very special Raising the Bar interviews, Mark Symes talks to Lawyer Monthly about his work in immigration & asylum, with particular expertise on the implications of Brexit on EU and UK business immigration law. Mark also tells us about his most notable cases and notes his opinion in regards to ‘raising the bar’ on immigration law, following the UK’s exit from the EU.
Mark Symes specialises in all aspects of immigration law; he has appeared in many leading cases involving asylum, human rights and public law. A Deputy Judge of the Upper Tribunal and a fellow of the Refugee Law Initiative at the Institute of Advanced Studies, Mark is co-author of Asylum Law and Practice - “encyclopaedic... pre-eminent” according to one Supreme Court judge, and co-author of Immigration Appeals and Remedies Handbook - (“invaluable … to the armoury of all … a compulsory addition to the library of every immigration judge and practitioner”: President of the Upper Tribunal Mr Justice McCloskey). Mark is also a contributor to MacDonalds Immigration Law and Practice.
How did you come to specialise in immigration, asylum and human rights law?
I became interested in refugee law and worked at the Refugee Legal Centre in the early 1990s, in a very different funding climate to the current one. Over the following decade the NGO sector grew very significantly and there was the possibility of pursuing a legal career within specialist NGOs such as RLC. Eventually I took charge of national legal strategy and training.
What has been one of the most notable and impacting cases you have worked on, and how did you raise the bar in this scenario?
In SQ (Pakistan) [2013] EWCA Civ 1251 I represented a young boy who potentially faced imminent death on a return to his country of origin. His case had failed in the Tribunals but the Court accepted that it raised issues of special public importance such as to surmount the “second appeals” test, notwithstanding that it had been twice refused permission to appeal to the Upper Tribunal. We persuaded the Court of Appeal that the private life of vulnerable children with serious health problems required special attention, representing an exception to the general rule for migrants that only the prospect of imminent death without palliative care could prevent their return abroad.
Over the last decade, what would you say have been the most significant milestones in UK immigration law to affect your work?
Two things:
Do you have any thoughts on the potential legal reforms in immigration and asylum that may be incited as a result of the recent Brexit vote?
By potentially making millions of EEA nationals (often with British citizen family members and children) who have lived and worked freely in the UK for many years subject to immigration control, the government is vastly expanding the work that will have to be done in future by the immigration dept. of the Home Office (UKVI). It remains unclear what arrangements will be put in place for the very large numbers of EEA nationals who are entitled to permanent residence, but have not previously been required to obtain documentation to confirm this.
British workers and entrepreneurs wishing to establish themselves in an EU Member State in future face the likelihood of quotas or rules, by which EU Member States give preference to EU nationals.
One might hope for some kind of transitional measures whereby those who have made their lives in this country, and contributed to the economy, can continue to reside here without satisfying the strictures of the Rules currently applying to non-EEA citizens.
How might this potentially affect the way business immigration is dealt with?
There are very large numbers of EU nationals presently in the UK in circumstances which would normally be subject to the business immigration routes. Currently, they are free to generate income for themselves and wealth for the UK via tax revenues and the general contribution to the economy without any significant regulatory burden. For example, wealthy individuals may be present as self-sufficient EEA nationals, whereas were they third country nationals they would have to satisfy the highly technical requirements of the Investor route; they may have set up a business, but if subject to immigration control they would have to satisfy the dozens of technical Rules found in the Entrepreneur route. There are large numbers of EEA nationals working here who would need their present employers to become sponsors under the ‘Tier 2’ route (and those sponsors would have to face the expense, including the ‘immigration skills charge’ of £1,000 per migrant, per year entering force in April 2017, and the administrative burden set out in the hundreds of pages of government-imposed guidance).
In regards to the UK’s approach to granting asylum, what do you believe should be expected of any government and if you had the power, what would you change or introduce?
The present crisis arising from armed conflict in the Middle East has led to vast population movements on a scale seldom seen since the Second World War. All civilised nations should see the virtue of responding to a humanitarian crisis so that the burden is shared equally. It is especially unfortunate that vulnerable children in places such as Calais are unable to be reunited with family members in the UK and elsewhere because of foot-dragging and reliance on legal technicalities by government bureaucrats.
Finally, how would you explain your reputation as a barrister who has raised the bar when it comes to UK immigration law?
Internal to the brief, when advising immigration clients, it is imperative to master their immigration history and spot missing information that might bear vitally on the case early on. Externally once must be aware of the constantly changing environment of rules and regulations and the possible legal challenge to any adverse decision. It is likely that the UK’s proposed departure from the EU will change the focus of restraint on governmental power from European Union law to domestic public law principles, including the judge-made rights recognised in our unwritten constitution: that is the likely direction of travel for lawyers at the cutting edge.
More than two thirds (70%) of the UK’s SME business owners are confident that the UK's decision to leave the EU will have no impact on their ability to access finance. This is according to the Close Brothers Business Barometer, a quarterly survey of UK SME owners and senior management across a range of sectors and regions.
Only in Greater London did over half of businesses (57%) answer ‘yes’ to the question ‘do you expect your access to finance to be impacted by Brexit?’. In contrast, in Northern Ireland and Wales, only 14% and 18% of business owners, respectively, answered ‘yes’.
“Overall, UK SMEs feel that despite the outcome of the EU referendum, their access to finance has not been noticeably disrupted, and nor do they expect it to be,” said Neil Davies, CEO, Close Brothers Asset Finance.
“Apart from Greater London businesses, all other regions feel that Brexit will have a limited impact on their ability to raise finance.
“We have consistently said that despite the outcome, it’s very much ‘business as usual’ and that we will continue to provide our customers with funding, as we’ve historically done through all economic cycles and periods of uncertainty. We even took out a full-page advert in the Sunday Times on 10 July saying exactly that.”
Sectors
There was a degree of variation within Close Brothers Asset Finance’s key sectors, with some expecting to see more of an impact than others. The breakdown of ‘yes’ responses to the question ‘do you expect your access to finance to be impacted by Brexit?’:
(Source: Close Brothers Asset Finance)
The House of Lords Constitution Committee recently published a report on ‘The invoking of Article 50’ in which it states that Government should not trigger Article 50 without consulting Parliament. The Committee says it would be ‘constitutionally inappropriate’ and would set ‘a disturbing precedent’ for the Government to act on the referendum without explicit parliamentary approval.
The Committee says that the referendum result was clear, and that Parliament is now responsible for ensuring the Government implements that result and takes forward Brexit negotiations in a way that achieves the best possible outcome for the UK as a whole. Parliament and the Government will need to work together with a mutual respect for each party’s constitutional role—and that starts with the Parliamentary involvement and assent for the invoking of Article 50.
The report points out that although the EU referendum was, in legal terms, advisory, it was accompanied by a clear undertaking by the Government, based on a manifesto commitment, to implement the decision reached in the referendum. In the UK’s representative democracy, it should be Parliament which takes the decision to act following the referendum. The Committee therefore states that Parliament should play a central role in the decision to trigger Article 50, and have a key role scrutinising both the Brexit negotiations and in approving the final deal between the UK and EU.
In considering Article 50, the Committee conclude that it is unclear whether Article 50, once triggered, could be unilaterally reversed by the UK. The report therefore states that Parliament should act on the assumption that triggering Article 50 would be irreversible, and that Article 50 should be triggered "only when it is in the UK’s best interests to begin the formal two-year negotiation process."
Commenting Lord Lang of Monkton, Chairman of the Committee, said:
"The referendum result was clear and it is right that the Government are preparing to take Britain out of the EU. However, our constitution is built on the principle of parliamentary sovereignty and the decision to act following the referendum should be taken by Parliament.
"Parliament should be asked to approve the decision to trigger Article 50—a decision which will start the formal process of the UK leaving the EU and set a deadline for the UK’s exit.
"Parliament’s assent could be sought by means of legislation or through resolutions tabled in both Houses of Parliament. An Act of Parliament would give greater legal certainty and could be used to enshrine the "constitutional requirements" required by Article 50, allowing for the setting of advantageous pre-conditions regarding the exit negotiations to be met before Article 50 could be triggered. A resolution could be simpler and quicker to secure but might not provide the same watertight legal authority. We consider that either would be a constitutionally acceptable means of securing parliamentary approval for the triggering of Article 50.
"Parliament and the Government will need to work together to ensure that the UK achieves the best possible outcome when it withdraws from the EU. It is therefore important that Parliament plays a key role in scrutinising the Brexit negotiations once Article 50 is triggered. We all want the negotiations to produce a deal that works for both the UK and the EU, and Parliament must be involved in holding the Government to account in delivering that."
(Source: House of Lords)
Law firms are increasingly concerned that the current slowdown in M&A activity will damage their profitability, reveals new research by Thomson Reuters Legal business, the world’s leading source of intelligent information for businesses and professionals.
According to the ninth annual research survey by Thomson Reuters Legal business, nearly a quarter (24%) of the Finance Directors (FDs) of the UK’s Top 100 law firms fear that weakness in M&A work is now a major risk to profitability, up from 8% last year.
The survey results reflect a trend seen elsewhere by Thomson Reuters. Global M&A activity was 18% lower in the first quarter of 2016 than in the same period the prior year*.
Headwinds caused by Brexit may now further dent business confidence already hit by the continued oil price slump and on-going concerns over the slowing economy in China.
The UK IPO market has also seen a slowdown in activity, with the number of IPOs on the London Stock Exchange falling from 137 in 2014 to 92 in 2015, according to PwC**.
Thomson Reuters points out that a decline in M&A activity is particularly significant for law firm revenues as this work tends to feed instructions in other areas such as employment, competition and tax.
“The buoyancy in M&A transaction volumes last year was a key driver of profitability for law firms, but further growth was in question even before the Brexit vote and will be even more so now,” says Samantha Steer, Director, Large Law Segment for Thomson Reuters UK&I Legal business.
“M&A transactions are a vital source of work for law firms, both in themselves and because they generate a significant amount of workflow across a range of other practice areas. If fears that corporate finance activity is weakening are realised that could rattle the sector.”
Law firm FDs predict that technology will be one of the fastest-growing sectors in 2016, with 28% of respondents foreseeing a rapid growth in work from this sector.
“The technology industry in particular has seen massive investment in recent years which has propelled growth in the UK and we expect this trend to continue into the long-term.
“London-based fintech start-ups have seen high levels of private equity investment flooding in which has helped to stimulate corporate activity whilst also cementing the city’s position as a leading fintech hub,” says Steer.
A sharp jump in demand for regulatory and compliance work is also expected this year, with 48% anticipating fast growth – compared to 28% last year and 18% in 2010.
Top 100 FDs predict that the mining sector will be among the sectors seeing contraction in 2016.
“The slump in commodity prices caused by a glut in world supply of metals and a slowdown in China has created an environment where 80% of FDs expect work from the mining sector to stagnate or contract in 2016 – the highest proportion of any area of work,” says Steer.
The prolonged low oil price has caused some Top 100 FDs to predict a shrinkage in energy work this year with 12% forecasting a contraction in workflow – up from 4% last year.
The study found that downward pressure on fees remains the biggest threat to the profitability of law firms, as it has since the recession, with around three quarters (72%) seeing this as high risk – up from 60% in 2010.
Cost over-runs on fixed fee work is the next biggest concern, with 40% citing this as a high risk
to profitability.
“Although firms have become much better at pricing their quotes for work on a fixed fee, finance departments are still wary about potential cost over-runs,” said Samantha Steer.
However, concerns about late payments by clients has receded markedly since the recession as law firms get tougher about chasing payments. Now, only 12% of FDs rate this as a high risk to profitability, down from 27% in 2010.
The survey, entitled Threats to Profitability and Opportunities for Growth: A Survey Amongst the UK’s Top 100 Law Firms, is carried out annually by Thomson Reuters to determine issues facing the industry and to provide valuable insight into law firms’ outlooks and strategies. Research is conducted amongst Finance Directors at 25 of the UK’s Top 100 law firms including Magic Circle and Silver Circle firms.
* Thomson Reuters Mergers & Acquisitions Review First Quarter 2016
**PwC IPO Watch
(Source: Thomson Reuters)
More than half of SMEs (56%) say they have felt no impact on levels of business from the UK’s decision to leave the EU, according to the Close Brothers Business Barometer, a quarterly survey of UK SME owners and senior management across a range of sectors and regions.
Nationally, 24% of those surveyed said Brexit had had a direct effect on their company, while a further 20% felt that it was too early to tell.
Regionally, businesses in Greater London felt the most affected by Brexit, with 46% answering 'yes' to the question 'have you seen an impact on your business caused by Britain's decision to leave the EU?’; 38% answered 'no'.
Least affected was the North East (no – 71%; yes – 20%) and East Anglia (no – 69%; yes – 12%). Wales was similarly bullish, with 63% answering 'no' and 12% saying 'yes'.
Of those companies who felt that there had been an impact on their business, 40% have seen an improvement in business while 43% have seen a decrease. The remainder (17%) said business had stayed about the same. Engineering firms were the most positive, with 65% of firms surveyed saying the impact of Brexit has been beneficial.
“It’s clear that the majority of UK SMEs are yet to feel any real and tangible effect from Brexit,” said Neil Davies, CEO, Close Brothers Asset Finance. “It’s interesting to note that of those who have been impacted, it’s pretty much split down the middle in terms of those who have been positively and detrimentally affected.
“There is also a real regional difference, with businesses in London feeling the most exposed.”
Spending decisions
More than three quarters (76%) of businesses have not delayed spending or investment decisions because of the EU Referendum.
Regions most likely to answer 'no' to the question ‘have you delayed any spending or investment decisions because of the EU referendum?’, were East Anglia (87%), Wales (90%) and Northern Ireland (90%).
Greater London was the region most likely to delay spending, with 48% or respondents suggesting that Brexit had prevented them from investing.
“It’s interesting to note that 88% of smaller firms – those with a turnover of between £250k to £500k - were the least liable to allow the EU referendum stop them from pushing their business forward,” continued Neil. “Close Brothers has a history of lending through all economic cycles, and experience tells us that these organisations aren’t sitting on large reserves of cash. In order to maintain business levels, they typically don’t have a choice but to spend and invest to ensure a sustainable flow of cash.
“Firms don’t become unviable overnight; we see it as our responsibility to do what we can to ensure our customers, who are in the main SMEs, remain in business and can build towards a profitable future.”
Companies that said they had delayed spending cited the economic uncertainty created by Brexit as the primary reason (62%) for holding back.
Opportunities
Only 18% of business owners are of the view that the decision to leave the EU will lead to fewer opportunities. Tellingly; however, 49% feel they anticipate no change and that it is likely to be ‘business as usual. The remaining 33% are looking forward to better prospects in the future.
“Greater London companies are the most positive region we surveyed,” said Neil. “Fifty three percent expect more opportunities while 48% of engineering firms are equally as positive.”
(Source: Close Brothers Group)
There’s a storm brewing, a vortex created by an exponential growth in technology and the sharp decline in the number of IT graduates entering the UK workforce. At one end of the spectrum we’re seeing major advances in fields like artificial intelligence, and at the other a quarter of the population still don’t have the skills to do more than consume digital products. Medium sized companies in the UK have identified the IT skills gap amongst their top 3 risks for the next decade with fears amplified in the wake of the Brexit vote.
As a parallel stream the trend toward a "gig economy" is growing; a recent study predicted that by 2020 up to 35 percent of workers could be independent contractors. Websites like Upwork and Freelancer have quite literally changed the way companies recruit and fill their IT skills gap, with specialist technology focused sites like The IT Project Board enabling searches based on any combination of IT category, skill, accreditation, certification, manufacturer and industry expertise to find the right person for your role.
Robert Chambers, CEO of TheITProjectboard.com says "Finding the right talent is expensive, time-consuming and unnecessarily arduous. Businesses must be prepared to go further afield to find the talent they need, modern platforms are designed to enable this at a few clicks; employers can find and invite talent to their projects directly, with no geographical barriers so saving both time and money." In addition these sites also provide unbiased ratings of completed projects, allowing businesses to make hiring decisions based on real outcomes not just instinct; eliminating the need to rely on the traditional gut feeling.
Perhaps these new virtual marketplaces will be the answer to the IT skills gap epidemic, "work" is after all no longer (just) a physical space or series of mechanical tasks as it’s a set of skills or aptitudes that we sell at the best price. These sites also allow companies to intelligently build Virtual Teams from multiple sources from all over the planet. The collaboration enables step changes in efficiency, time and cost. You can get things done in a much more flexible, dynamic, and distributed way, and visibility is increased as your entire team regardless of location or time zone can view a single dashboard.
The IT Project Board’s CEO goes on to say "today’s workforce is fragmented; over a third of the workforce did some kind of freelance work over the past year. Nearly four out of five employers in establishments of all sizes and industries use some form of non-traditional staffing. Online marketplaces are the most flexible way to recruit the multiple types of resources you need to complete a project. The right people can quickly get involved on a project in a matter of a few clicks, as opposed to the normal 30 day recruitment cycle.”
Millennials want transparency, flexibility and the ability to work for multiple employers simultaneously if they chose, anywhere they choose. And businesses win by combining a flexible remote workforce with traditional workforce to maintain stability, morale and cost controls. Is it any wonder then that these collaboration websites are flourishing? The question is; will they do enough to solve the epidemic.
(Source: The IT Project Board.com)
