After the extraordinary scenes witnessed in 2015, with refugees and migrants entering Europe by land and water at an unprecedented rate, few would have predicted that 2016 would see further events with potentially far-reaching impacts on the Western world for generations to come. Numerous governments around the world have gradually – or, in some cases, suddenly – taken a more isolationist stance, as political upheaval, the real or perceived threat from terrorism and, in some instances, mistrust, division and xenophobia have shaped attitudes towards migration and immigrants. The immigration legal market has been left to react as best as it can to the unexpected and significant events of 2016.
While the most ardent “pro-Leave” supporters will have been optimistic that the UK would vote to leave the EU in June 2016, few – not even the campaign’s leaders – could honestly say that they expected it to occur. Certainly, evidence in the aftermath of the vote suggests that preparations for a "Brexit" were at best inadequate and at worst virtually non-existent. Throughout the campaign, immigration was a key topic of debate and has remained so as the intricacies of leaving the EU are now worked out. When our research for this publication was conducted in late 2016, the immigration lawyers responded with a mix of frustration, pessimism, confusion and uncertainty as to what Brexit will entail. One individual even went as far as to suggest that the post-Brexit UK is “hostile, nasty and not a nice place to be right now.”
Immigration has historically been a legal area governed by well-defined rules and reasonable levels of certainty. However, while lawyers wait for clarification from lawmakers they have increasingly found themselves having to speculate or guess when advising clients on immigration matters. “People want definite answers,” said one lawyer; but, as another commented, this has not been possible: “It’s very difficult to advise because we don’t know what’s going on.” A third practitioner stated, “No one enjoys the uncertainty and there is going to be a period of time when everyone waits to see what happens.”
Leading firms in the market have sought answers from government. “We try to lobby but the government won’t even talk to us, because they don’t know what to talk about. They’re busy doing blue-sky thinking,” said one source, adding: “It’s generating huge amounts of work for us – it’s ridiculous, annoying and pointless!”
Other experts were somewhat more positive in their outlook: “Some of what’s been said about immigration was alarmist. Don’t panic! I cannot see a situation where we won’t end up with full-on protection for anyone who’s exercising [free movement] treaty rights.” Many practitioners, too, had well-formed views about what the changes to immigration laws will likely look like: “The sheer expense of overhauling the current system makes it wildly unlikely. It’s not business as usual for non-EEA nationals but I think it will be closer to what we’re used to than some have suggested.” Others noted, “I think there’ll be a light-touch system for Europeans,” and “Companies will stay in London but there will be a cost.”.
What all interviewees were agreed on is that “Brexit is now at the top of the agenda” and “immigration is no longer at the bottom rung of the ladder for companies.” Those we spoke to, both in the UK and further afield, also noted the “huge upswing” in the amount of work they were taking on. For instance, one Dutch lawyer told us, “Brexit has become part of our daily consultation practice.” Few were left in any doubt about the significance of the process ahead; as one put it, “Non-UK citizens who have lived here for 30 years simply don’t understand what no freedom of movement means.” Meanwhile UK citizens elsewhere in Europe are “nervous and anxious to see what’s going on”.
Beyond the referendum, other trends and changes in immigration are also likely to have an effect on the work being undertaken by lawyers. Income thresholds for Tier-2 skilled worker visas in the UK are due to rise in April 2017, while in other countries such as the Netherlands, changes to rules on intra-company transfers are bringing “a huge change to the landscape”. In addition, elections in France and Germany in 2017 are likely to feature political pledges and much rhetoric concerning immigration and, depending on the winners, the prospect of further changes to immigration law.
The bulk of our research for this book was conducted prior to Donald Trump’s presidential victory in November 2016. The pre-election mood among US immigration attorneys, when faced with the prospect of a Trump win, was downbeat. Some of those we spoke to envisaged “ugliness and nastiness with Trump” on immigration matters, with election promises described as “a war against immigration”. Others said, “It would be a nightmare if Trump were elected.” As in the UK, few expected the ultimate outcome, with one lawyer telling us, “I fully expect that Hillary will be president.”
Uncertainty, too, was a common theme in the US, much as it was in the UK. “The lack of predictability is a big problem,” said one practitioner, while another said, “We’re all waiting with bated breath.” Although Trump’s immigration plans have become somewhat clearer in early 2017, the uncertainty has far from disappeared. The legal challenges that resulted in the overturning of his first executive order on immigration, while generating substantial work for immigration attorneys, have hardly resolved matters – this is even less the case after Trump signed a second executive order in March 2017. The chaotic implementation of the executive orders has resulted in widespread uncertainty and news stories that would previously have been considered absurd, such as that of a Canadian citizen being denied entry to the US via the Canada-US border for not having a visa. Even pre-election, lawyers told us that “law or policy on immigration changes every few seconds” and “the system is broken, everyone knows that”. The lawyers who contemplated a Trump presidency did not expect this “broken” system to be fixed quickly.
A certain result is that US immigration attorneys will be even busier over the coming year than they previously were, as companies assess the market and look for advice on how best to manage their workforce and ensure that high-quality talent continues to be allowed into the country. Several interviewees reported an uptick in work prior to the election as individuals and companies sought to renew permits.
Elsewhere in US immigration, commentators told us that there are an increasing number of investigations by the Department of Justice and others into immigration matters, including the e-verify system. They also reported that it was becoming increasingly difficult to obtain approval for L1 intra-company transfer visas. Indeed, there was a general feeling that the “very strict” US immigration system was only going to become stricter. The coming year is unlikely to be quiet or dull for the US’s enormous immigration bar.
With a few notable exceptions, immigration work remains the preserve of smaller firms, immigration boutiques and sole practitioners. Only four of the 387 firms listed in this year’s guide featured 10 or more listed attorneys; only 19 had four or more listed lawyers; and over two-thirds had only one practitioner listed. If, as expected, immigration rules become stricter in major jurisdictions around the world, more resources will be required to process the visa and permit applications required for staff to continue working legally. Additionally, according to sources, some governments are also stepping up compliance checks, audits and site inspections; companies “are going to have to have fantastic record-keeping” in order to fulfil their legal requirements.
As a result of some of the trends identified in this article, immigration is moving up corporations’ agendas. Some of the subsequent increase in work will undoubtedly be handled by in-house legal teams, but private practice lawyers will also have to pick up the remaining slack. At the same time, however, in the coming years “existing and emerging technologies will allow new efficiencies in law practices”, according to a report by the American Immigration Lawyers Association titled The Future of Immigration Law. These technologies may allow smaller immigration teams to counteract any increase in the volume of work that stricter immigration controls and enforcement may bring. Other expert boutiques may, by contrast, look to “thrive by handling high-quality, highly remunerative, mission-critical work” and focusing less on volume work. For immigration firms that don’t have the resources to invest in new technology, or the right client base to focus on top-end immigration mandates, the future may prove tougher.
Although the UK and the US have dominated headlines in the past year in terms of immigration, it remains a busy, diverse and thriving area worldwide. In India, for instance, sources told us that “inbound immigration is increasing and large multinationals are looking to establish themselves in the country”. Whatever actions are taken by governments, companies will still need overseas talent. These global governments, including those in the UK and the US, are unlikely to ignore the economic benefit that such migrants bring – even though based on recent evidence, immigration and free movement rules are likely to be tightened overall. It seems as though 2017 will be a busy, difficult and uncertain but interesting year for immigration practitioners worldwide.