T’was a week before Christmas and all through the land
Immigration law changes had got out of hand…
On 19 December 2018 the government finally published the much-anticipated immigration White Paper, outlining the new post-Brexit immigration system that will be implemented in the UK. This has followed weeks of confusion and misdirection in the UK immigration system, from the Tier 1 Investor changes that never materialised, to amended rules that don’t take effect for 8 months, to a massive hike in the Immigration Health Surcharge that nobody knows when to expect. At times you have to wonder, Do They Know It’s Christmastime At All? The White Paper, in true Christmas tradition, is a gift that nobody really wanted, but now we have it, so let’s take a closer look.
Free Movement was dead, to begin with
The key purpose of the White Paper is to bring an end to the free movement of EU nationals into the UK. The government repeatedly refers to this as ‘taking back control of our borders’, but that gives a false impression of what free movement is. Free movement is the reciprocal permission all EU citizens have to travel within the EU for economic reasons (eg to work or to study). Ending free movement means two things:
- UK nationals lose their rights to travel freely in the EU – you might have seen a £7 ‘visa charge’ for European holidays discussed during the last week; and
- EU nationals will need specific pre-approval to travel to the UK for any reason – for visits, that is likely to be a low-priced screening process (like the ESTA for the US), but for workers and students, that means qualifying for a full UK visa.
The UK is not ready to introduce such a major change to the immigration system so quickly, so during the Brexit implementation period (which is proposed to last until December 2020, but that may be dependent on whether a Brexit deal can be reached before 30 March 2019), free movement into the UK will continue. EU citizens will still be welcome to travel here with no new visa required for entry, and so long as they apply for new post-Brexit settled status scheme residence documents by June 2021, they will not need to enter the new immigration system. After the implementation period completes (from January 2021), free movement will end, and the new immigration system takes hold.
Rocking around the RLMT – changes for workers
The government’s definition of ‘skill’ in the workplace is problematic. Skills are equated with education, and under the current system, only job roles which are assessed at graduate level or above are suitable for sponsored employment. Clearly those jobs do require a high level of skill, but equally there are many ‘lower skilled’ jobs which are ignored under the current sponsorship scheme.
The first positive development post-Brexit is that the cap on sponsored workers will be scrapped. This is an essential change; the low numbers permitted under the current cap would have been far below the UK’s needs once EU workers are added into the system.
However, future sponsorship will not be easy. The focus on skilled work continues, with an added £30,000 minimum annual salary requirement, which will disadvantage those applying outside London. While the definition of skilled labour will be widened to those with ‘intermediate skills’ (judged at being A level or higher), there is no current agreement to lower the salary requirement for those roles. It is estimated that 60% of roles skilled to intermediate level pay wages below £30,000 per year.
The government is not yet fixed on the £30,000 minimum, and states that it will liaise with stakeholders to agree appropriate levels as we move towards 2021. It is encouraging that there are references to a lower salary threshold for graduate positions, but no confirmation yet as to where that would be fixed, or for how long.
Even widening skilled work to include the new intermediate level, some sectors already under pressure will fall below this requirement. Social care is a prime example, already considered by UKVI to be on the cusp or below intermediate level. To address this, in addition to the skilled worker route, a secondary route will be introduced for temporary short-term workers. This is a non-sponsored option, transitional for approximately 5 years, and focused on ‘low-skilled’ work completed by those from ‘low-risk’ countries (presumably including much of the EU). The route is very restrictive however, limiting visas to 12 months at a time, with a 12 month ‘cooling off’ period outside the UK before the individual is then permitted to return to complete a new contract.
The Resident Labour Market Test (RLMT) is another casualty of the new system, in recognition that is it not an effective check of whether proposed sponsorship is for a genuine vacancy with a legitimate need to sponsor. Removal of the RLMT will cut down the administrative burden on sponsors and the time sponsorship takes to arrange, and is a welcome development. However, the government publications on the new system do hint at a possible reintroduction of the RLMT or similar for intermediate level roles – or even a new numerical cap on migration – if desired in future.
In addition to these worker routes, a new start-up visa will be introduced, the entrepreneur option will be re-worked into the new innovator visa, and the investor route will also see changes. Options for exceptional talent applicants continue, and were recently expanded to include architects. The agricultural sector will also participate in a seasonal workers scheme in 2019, with a view to permitting time-limited migration to meet demand.
It’s beginning to look a lot like more CAS – changes for students
From 2021, EU students will be added to the existing immigration system, meaning that they will require specific sponsorship from their education provider to study in the UK (known as a Confirmation of Acceptance for Studies, or CAS). In response to this, institutions should see increases to their allotted international student quota, and proposals promise a light touch and more streamlined sponsorship system.
A positive move is to extend the time a student (undergraduate level or higher) may remain in the UK after their course completes, in a 6-month post study work capacity (12 months for PhD students). This will assist students in gaining UK life and work experience, and transitioning to sponsored employment, if that is appropriate for them.
For short-term students, no visa will be needed. This covers those studying courses of 6 months or less. EU nationals (who won’t need a visa for any short-term travel to the UK) will instead require an Electronic Travel Authorisation (to be introduced).
Love Actually or Home Alone – changes for families
As with the work and study categories, those seeking to sponsor family members from 2021 will fall under the existing immigration system. The major change for an EU national looking to do this will be the need to meet the complicated minimum income requirements (currently they must only show that they are carrying out a qualifying activity, such as employment). Family members sponsored under the Immigration Rules also have English language requirements to meet, and are subject to much higher fees and the Immigration Health Surcharge. As a result, the post-Brexit system will introduce more requirements than EU nationals and their families currently face.
So there we have it, a brave new world for Brexit Britain. It is preferable to know the plan for what comes next, and that the implementation period (providing it is kept to) gives 2 years for employers and individuals to prepare. However, the system does limit future growth, and the predicted reduction in GDP over the next 5 years is nothing to celebrate (estimated to be 0.4-0.9% lower in 2025 than if free movement were maintained). Ultimately, the White Paper remains an unwanted gift for those us of still singing ‘All I want for Christmas is EU’.