Brexit and the arts – one year on

Nathan Woodcock
Nathan Woodcock
What might Brexit mean for the arts sector and how can you head off any potential problems? Immigration law expert Nathan Woodcock investigates.

It is a certainty that one way or another Brexit will have an impact on all sectors of the UK economy. European Economic Area (EEA) nationals have been able to join the UK labour market on an equal footing to British and settled workers for the last 40 years. The issues now faced by EEA nationals and UK businesses are the challenges that Brexit will bring. The arts sector is no different to other industries and will face the same level of uncertainty. The Creative Industries Federation (CIF) recently conducted a survey, which found that 75% of members employed EU nationals and 61% used non-British freelancers. Other sectors such as tourism and hospitality would also feel a knock-on effect if the arts were no longer able to meet demand. Prior to the referendum, Andrew Lloyd-Webber commented that the UK’s departure from the EU would be ‘catastrophic’ in general. For the arts, the end of free movement will cause difficulties in accessing talent and has the potential to create labour shortages within the sector. Furthermore, EEA nationals are not only employees of the UK arts sector, but also a consumer base. Will cultural tourists still visit the UK post-Brexit? Can the UK retain its position as an arts leader?

What do we expect to happen?
Free movement between the UK and the EU will likely come to an end in the post-Brexit era, as stated in the Brexit White Paper, where the government has laid down its intention to bring EEA nationals under UK immigration law. This message was also echoed in the Conservative and Labour manifestos released before the 2017 General Election.There is already in place a system for EEA nationals to register that they are living and working in the UK. EEA nationals are able to apply for residence cards to demonstrate the fact that they are exercising Treaty Rights in the UK and are also normally entitled to Permanent Residence after completing five years of residence in the UK. Some commentators believe there will be a cut-off date for EU nationals already in the UK to obtain a residence card or Permanent Residence and that transitional provisions will be put in place for those that obtained such documentation. There is currently no indication as to ‘if and when’ such a cut-off point will be, but the expectation is that it would come at the end of Brexit negotiations between the UK and the EU Commission and the member states.

What could the post-Brexit immigration system look like? 
The immigration system for EEA nationals post-Brexit has not been laid out in much detail at this stage in the Brexit negotiations. Future EEA nationals coming to work in the UK may be required to obtain work permits in a similar way to non-EEA nationals. However, there is some indication that a more favourable system for EEA nationals will be put into place and the distinction between EEA and non-EEA nationals may remain. Whatever form the new system takes in the post-Brexit world, it is essential that wide-scale labour market shortages are avoided. The arts could lose the onstage talent and technical support staff if the future system is not fit for purpose and has not taken into account the sector’s needs.

What are other sectors doing?
Some companies from other sectors have been able to identify and prioritise the registration process of key employees. They have also begun to educate their staff on how they can protect their right to work in the UK beyond Brexit. Certain sectors of the UK economy have banded together to bring their needs and concerns to government at all levels and argue their points publicly and privately – CIF may need to do the same. What can be done by the arts?

The arts has the potential to be an effective lobby that influences the post-Brexit immigration system. To do this, the arts must take inspiration from other sectors, while also highlighting its unique considerations. One such consideration is that many of the EEA nationals working in the UK arts will be self-employed. This makes the provision of evidence to show that they have been exercising Treaty Rights more difficult to obtain in comparison to other sectors where full-time employment is commonplace.

To counter this, mechanisms must now be put in place by the sector to avoid such problems. In practical terms, this means invoices and other documentation confirming the payment for services are provided to such persons. It would be prudent for the arts to consider who is at risk, who will be needed in the post-Brexit world and how their key assets can be safeguarded. The sector can then move to ensure their staff are taking advantage of the current registration system by providing administrative assistance where required. The application process for those who have worked here for five years or more is straightforward and inexpensive when compared with other immigration pathways. The arts can also turn to their home-grown talent to fill any gaps. If the talent is not available right now, training and development resources need to be invested so that such talent is available by the completion of the Brexit process.

Be heard
The Migration Advisory Committee, an independent public body that advises the government on migration issues, will look at the views of key stakeholders such as the arts industry and will rely heavily on data provided to them. Getting the numbers right in terms of the current population of EEA nationals working in the sector, as well as the financial consequences of losing them, will strengthen the potential influence on policy. Set out your needs in simple terms but be ready for the technical questions. The arts industry has a great opportunity to shape the future of the UK immigration system post-Brexit. By coming together with a clear and concise message, sector leaders can be a force to be reckoned with.

Nathan Woodcock is a solicitor and expert in immigration law at Fragomen LLP.