How Brexit could impact UK visas for foreign media

Currently, nationals of countries from the European Economic Area (EEA) are permitted to enter and work in the UK free from immigration restrictions. Citizens of countries outside the EEA, on the other hand, will ordinarily need to be granted permission. This means making an application to the UK Home Office for the relevant visa.

The Brexit effect?

Over the summer, a number of international performers came out to openly criticise the difficulties they faced obtaining their UK visas. But it’s a problem affecting media professionals across the industry.

Whether you are a UK or overseas media company looking to employ foreign media professionals in the UK, the administrative demands of making an application will be onerous. What’s more, the so-called ‘Brexit effect’ is exacerbating the situation.

Figures from the Office for National Statistics suggest EU workers are now deserting the UK labour market and companies are having to look further afield to recruit. This means more applications are made for work visas. But the government’s cap on skilled worker visas has made it impossible to accommodate the surge in demand.

More applications have led to more refusals, particularly among roles with lower salaries impacting those on lower salaries. It has created a bottleneck of visa applications and reduced the prospect of skilled worker visas being granted. But reform is coming.

Post-Brexit proposals

A new, post-Brexit immigration system has been announced by the government under which skills and contribution will take priority over nationality. Under government proposals, the new UK immigration system will be founded on the following fundamental changes:

Removal of ‘preference’ for EU citizens

The current stated position is that free movement is to end with Brexit and any favourable terms in respect of EU citizens’ rights to live, work and study in the UK will be removed.

Consequently, EU citizens will become subject to points-based criteria and visa application processes, as is currently the requirement for non-EEA nationals.

The implications for UK employers will be far-reaching. Cost-wise, employers will be required to pay the associated costs of hiring under the points-based system, which are not insignificant.

This includes meeting minimum salary thresholds. Additional compliance requirements to advertise roles may also apply if the required skills are not featured on the government’s list of shortage jobs.

The change will also make it almost impossible to hire EU citizens for lower skilled roles, unless they fall under sector-specific exceptions.

This position on EU citizens may, however, change in light of Brexit negotiations, for example where reciprocal rights are subsequently guaranteed for UK nationals in EU countries.

Improving the highly skilled visa route

The existing cap on the number of Tier 2 (General) visas that can be issued is to be abolished. This will allow employers to hire qualifying workers as they require and without being subject to arbitrary limits or having to compete for visas with other employers across other professions.

A number of media roles are already deemed Tier 2 eligible under the current rules:

• Senior creatives – such as producers, directors, cinematographers, production designers and visual effects supervisor;
• Key creative workers required for production continuity;
• Key creative workers with a significant previous working relationship with a senior creative;
• For highly specialist roles where advertising would not be appropriate;
• International co-productions;
• Personal assistants to directors and producers of international status.

The proposals also look at extending the Tier 2 route to include medium-skilled workers, which could potentially open up more media skills for Tier 2 eligibility.

New routes

With a focus on skilled workers and the removal of free movement, we expect other routes will be developed in time in response to specific needs of specific parts of the economy. This will create a system akin to that in the UK ‘pre-Europe’.

For example, the existing Sole Representative visa offers a specific category for an employee of an overseas-based news or broadcasting agency to represent the organisation in the UK on a longer-term basis. Expect more such categories to emerge in specific areas.

New agreements with countries such as the US and former Commonwealth could also be on the cards to facilitate talent exchanges and closer trade relationships.

Settled status

For EU citizens already living and working in the UK, Brexit has been a source of considerable uncertainty and anxiety in respect of their future immigration status.

The government is now in the process of piloting the Settlement Scheme, which will require all EU citizens in the UK to register for settled status by the end of the Brexit transition period to secure their lawful status to live and work here. Thereafter, British citizenship may be open to them.

Those with settled status can continue to live and work in the UK and will not be affected by any post-Brexit removal of preference for EU citizens.

Where are we now?

Until any new legislation is passed, the rules remain unchanged. EU citizens continue to enjoy free movement and the right to enter and work in the UK free from immigration restrictions and non-EEA nationals will in most cases need to apply for a visa.

Media organisations looking to deploy a non-EEA media worker to the UK face a number of factors determining the suitability and availability of visas, such as the applicant’s nationality, skills and the role on offer, as well as the duration of the stay and intended nature of activity during the visit.

For example, a short-term trip for a business meeting is likely to require a business visa for a visa national, or for a non-visa national such as a US citizen, a certified letter to present at border control is likely to suffice.

Longer-term assignments would usually require permission under the UK’s points-based system for skilled workers. Points-based visa options for media workers commonly include:

Tier 2 (General) visa

Tier 2 UK visa applications for media workers, journalists and other sector professionals are dealt with under specific rules within the Tier 2 skilled visa route. This category includes applicants coming to the UK to fill shortage occupations

To be eligible, the employer (or a subsidiary or branch) would have to be UK-based and the role in question will have to meet specific criteria for skills and salary.

Intra-company transfers for existing employees of multinational employers who need to be transferred to their UK branch for training purposes or to fill a specific vacancy. Again, this will require the employer to sponsor the employee.

Tier 5 temporary visas for creative workers for temporary worker to satisfy cultural, charitable, religious or international objectives. You will need to have an offer of a position before applying for a visa. The flipside however is that the scheme only permits holders to stay for two years. Holders must return to their home country on visa expiry. It is a short-term solution that contributes to high staff turnover.

Retaining a Tier 5 teacher after their visa expiry will require careful consideration of immigration options on a case-by-case basis.

Keep rolling

Whatever direction the UK immigration rules take post-Brexit, we don't expect the general position on visa processing to shift.

The expectation should be that the Home Office will scrutinise and question visa applications for foreign media workers. Home Office scrutiny will continue to be driven by the question of whether a UK resident worker could do the work instead.

Applicants should be ensuring they are providing sufficient and compelling evidence to support their eligibility. Make no assumptions that the Home Office will understand the role in question or attribute the applicant with any benefit of the doubt. Even with the smoothest of visa applications, the process still takes time.

Reform is certainly coming to UK immigration, precipitating change in recruitment and on boarding budgets, processes and strategies that media companies will need to adjust to minimise disruption and keep the flow of key talent across borders post-Brexit.

Anne Morris is a UK immigration lawyer and managing director at DavidsonMorris, specialising in all aspects of UK visas for media organisations based in the UK and overseas.