On 19 December 2018, the Government finally published the long awaited White Paper: “The UK’s future skills-based immigration system”. This was followed a day later by The Immigration and Social Security Coordination (EU Withdrawal) Bill.
Once enacted, the Bill will end free movement rights for EU nationals, whilst protecting the special status of Irish citizens who will continue to be able to enter and remain freely in the UK.
The White Paper contains the Government’s proposals for the new regime that will apply to EU nationals who arrive in the UK after Brexit. The end of free movement means they will face new restrictions. However, rather than apply the current visa system as it is, the Government has suggested some amendments to soften the impact. These amendments would also affect non-EU nationals, who may, therefore, find it slightly easier to work in the UK than they do now.
It should be noted that at this time they are just proposals. The Government has said it wishes to spend a year consulting on its plans before laying new Immigration Rules. Therefore, all of the points covered in this article are not yet in force and may be subject to change.
Any new system is not expected to come into force until 1 January 2021.
EU nationals will be permitted to visit the UK for up to six months without a visa, subject to obtaining an Electronic Travel Authorisation. As visitors they will not be permitted to work in the UK. However, there are proposals to allow switches to work categories, which will assist visitors who come to the UK looking for work.
Headlines have focused on proposals to create a new temporary short-term work route. Migrants would be allowed to do any job (with no minimum skill level or sponsorship required), but would be limited to 12 months in this category, followed by a 12 month cooling off period. This has been designed to address concerns raised by employers in a wide range of sectors, who are currently reliant on EU nationals to fill lower skilled roles. However, it could also be used by highly skilled migrants.
It is important to read the proposal in full. This is only designed to be a transitional measure to give the economy time to adjust to a post-Brexit world. It will be fully reviewed by 2025 and may actually be suspended earlier depending on economic conditions. There would be restrictions on numbers. Visas would be required and application fees are expected to increase incrementally each year.
Furthermore, “it will only be open to migrants from specified low-risk countries”. So although this is presented by the Prime Minister as “a system where it is workers’ skills that matter, not which country they come from”, that is not actually the case.
Migrants would be free to move between employers during the year of their visa. This flexibility should help protect them from abuse and encourage competition between employers. However, there would be no right to bring dependants, settle in the UK or access public funds. This may be seen as a way of supressing net migration and reducing the burden on local services. However, concerns have been raised that the proposed rules will lead to even greater integration problems and a high turnover of workers could exacerbate problems in some areas.
Changes to Tier 2
Existing Tier 2 sponsors will be pleased with many of the Government’s proposals to broaden and simplify this visa route.
In 2018 many employers struggled to fill vacancies from outside the UK, due to the cap on the number of Tier 2 General Restricted Certificates of Sponsorship. This was eased when doctors and nurses were removed from the quota, thereby freeing up places for other roles. It is good news that the Government proposes to remove the cap altogether.
Many sponsors are frustrated by the bureaucracy of the resident labour market test. Although this is meant to ensure settled workers are prioritised for vacancies, the reality is that if an employer is determined to recruit a skilled migrant, they can usually find a way to do so. Also in many cases, even if the role is not deemed to be in national shortage, it may be locally and so running adverts for 28 days is futile. Therefore, the proposal to remove this hurdle will be welcomed.
Instead the Government wishes to use cost to deter employers from recruiting migrants. This means the Immigration Skills Charge will be retained, to incentivise training of local workers rather than paying for migrant workers.
Currently sponsors can only support Tier 2 visas for roles deemed to be skilled to RQF level 6 or above (degree level). The proposal is to lower the minimum skill level to RQF level 3 (A level). On the face of it this will broaden the type and number of roles that can be sponsored. However, this is tempered by the Government’s confirmation that there will be a minimum salary level for sponsorship. The Home Secretary has suggested this should be maintained at £30k, which actually rules out even some RQF level 6 jobs, especially outside London and in the public sector. However, the minimum salary will be subject to consultation.
As more employers are likely to need to become sponsors, the Government has suggested that it wants to adopt a lighter touch and speed up visa processes. It remains to be seen if this will actually happen.
Tier 5 Youth Mobility Scheme
The Government wishes to continue the current youth mobility scheme, which allows migrants from designated countries up to age 30 to work freely in the UK for up to two years. They have suggested more countries could be added to the scheme, for example EU countries. This is perceived as another route that may help employers fill temporary vacancies for lower skilled work.
Tier 5 Agricultural Workers Scheme
A small scale pilot of this new scheme has already started and will be reviewed before deciding if it should be expanded.
The Government intends to improve post-study work rights for migrants who complete a degree in the UK. They would be allowed to work for six months post-Bachelors or Masters and 12 months post-PhD.
Concessions which facilitate switching to Tier 2 work visas would also be expanded, so that migrants who have completed a degree in the UK can benefit from the more generous rules even if they apply for their Tier 2 visa from outside the UK, for up to two years after they graduate.
There are no particular plans to facilitate self-employment. This is likely to be a problem for EU nationals who want to come and work in the UK on this basis. Like other migrants, they would be restricted to routes such as Tier 1 Exceptional Talent or Tier 1 Entrepreneur.
The Government suggests that it will continue to allow non-visa nationals to come to the UK for short-term study up to six months. EU nationals coming to the UK for short English languages courses are likely to fall into this group. However, EU national students coming for longer courses would need to apply for a Tier 4 visa. This will increase the burden on schools, colleges and universities.
Family of British nationals
The Government is not proposing any changes to the rules for British nationals to bring family members to the UK. So the minimum income requirement of £18,600 for a spouse/partner visa will continue. Meanwhile the end of free movement means more couples may find their relationship requires a visa if they are to establish their family life in the UK.
The Government plans to update the ‘Life in the UK’ test, which must be passed before a migrant is granted indefinite leave to remain (settlement) in the UK.
Importance of consultation
The Government wishes to spend a year consulting before laying new Immigration Rules. It is essential that employers participate in this consultation, in particular regarding the minimum salary level for Tier 2 visas and the maximum duration and cooling off period applicable to temporary work visas. Otherwise there is a risk that promises to soften the rules will have little impact in practice.
This article is from the January 2019 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at January 2019.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2019.