Employment and Immigration Law Update – Boris has his majority, so what next?

The outcome of the General Election was an overwhelming victory for the Conservative party. Boris Johnson now has a majority of 80 MPs, which should allow him to push through the legislation of his choice.

Brexit

The new Parliament is expected to have its first debate and vote on a new draft Withdrawal Agreement Bill on Friday 20 December 2019. It is anticipated that this will be passed into UK law with little change, in time for the UK to ratify the Withdrawal Agreement before we are due to leave the EU at 11.00pm on Friday 31 January 2020. However it should be noted that the EU also needs to ratify the Withdrawal Agreement before it can come into force.

Under the terms of the Withdrawal Agreement, there will be a “transition period” to 31 December 2020.  During this time free movement will continue. This means EU nationals will continue to have the right to come and live and work in the UK and British nationals will have reciprocal rights to move to the EU, until the end of 2020.

EU nationals arriving in the UK during the transition period will have the right to apply for pre-settled status under the EU Settlement Scheme (EUSS). In due course they should become eligible for settled status, meaning they can apply to remain in the UK indefinitely.

Assuming the agreement is ratified, the deadline for applications to the EUSS will be 30 June 2021, both for those in the UK before Brexit day and those arriving during the transition period.  
The Government previously advised that there would not be any changes to right to work check requirements until January 2021. It would seem sensible, given the later deadline for applications to the EUSS, to delay any change until July 2021, but that would need to be confirmed.

The transition period was designed to allow the UK to formally leave the EU, whilst continuing the status quo until a future trade deal is agreed. However, the delay to Brexit means that there will be less than a year to conclude a new trade deal. Any extension to negotiations would need to be arranged in the summer. Mr Johnson is adamant that it is possible to reach a trade deal in time and he will not ask for an extension. However, those in Brussels are more cynical.  It remains to be seen if a deal will be reached and if so what the terms are, in particular whether the EU seeks to obtain any concessions around visas for EU nationals. If a new trade deal is not agreed we will revert to WTO terms, which do not contain any particular provisions regarding immigration.

The Government’s intention is that from 1 January 2021, EU nationals wishing to come to the UK will be treated in the same way as non-EU nationals.

New Immigration System

The Tory manifesto included a pledge to implement an “Australian-style points based system” from 2021 but, to date, no details have officially been published. However it has been revealed that a press release with more information was sent to selected journalists ahead of polling day in the General Election.

The press release refers to a new system, which allocates people to three separate categories.

1. “Exceptional talent/contribution”. This seems to cover the current Tier 1 visas for investors, sponsored entrepreneurs and exceptional talent or promise. No job offer will be required. Migrants in this category will be able to bring dependants who will be permitted to work. There will be a potential fast-track route to settlement after three years, rather than five years. There will be no cap on numbers for exceptional talent and the pool of UK research institutes and universities able to endorse candidates will be extended.
2. “Skilled workers”. This appears to be replacing the current Tier 2 visas for skilled workers. There is a promise to streamline and speed up the sponsorship process. The Migration Advisory Committee (MAC) will be asked to advise annually on whether caps or incentives are required based on whether there are shortages or excesses of migration via this category. This category will include the NHS visa previously announced by the Conservatives. This will be for qualified nurses, doctors and allied health professionals, with no cap on numbers.
3. “Sector-specific rules-based”. Once free movement ends, there will be no general route for low or unskilled workers. However, if the MAC identifies a specific labour market shortage then the Home Secretary will be able to set up capped schemes, such as the Seasonal Agricultural Workers scheme. There is likely to also be a scheme for short term visas for touring and work assignments. The rules will vary by scheme, but typically none of the schemes will lead to settlement.

The press release envisages a new, extended role for the MAC. The MAC will be required to produce an annual public report advising the Home Secretary on how to lower overall immigration, whilst meeting the needs of the UK economy and improving the UK’s productivity.

The MAC will also be required to monitor the needs of the labour market on an ongoing basis and will be given more resources for this purpose. The Home Secretary will continue to appoint the committee, including the Chairman and will have full discretion over the new system.

The press release also highlights plans to digitise the visa system. It claims this will lead to improved enforcement of visa conditions. In particular there would be a regular exchange of information between the Home Office and HMRC. It is confirmed that all migrants will be required to pay the health surcharge, until they achieve settled status.

Notably the press release does not address the issue of family migration.

It is somewhat ironic that a party which complained it could not control net migration due to unlimited numbers allowed to move from the EU, is now saying there will be no limit on the number of exceptional talent or NHS visas.

The press release envisages a formal exchange programme with the Australian and Canadian governments, to allow them to send experts who will share best practice.  An “expert implementation group” will also be appointed.

Much has been made of the desire to implement “an Australian-style” points based system.  It can only be hoped that the sharing of best practice will help the government to appreciate that the points-based element is only one small part of the Australian immigration system and when designing a new system for the UK, if it is to work, then it should be about more than just points and the categories identified above.

This article is from the December 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For more details regarding any of the matters covered in this update, please contact a member of our Immigration Team. Law covered as at December 2019.