The Immigration white paper - what will it mean for the UK's future immigration system?

Posted in UK and EU legal framework Employment and labour

The UK Government has now published the White Paper on the future immigration system for the UK after it leaves the EU. It has confirmed, following many of the recommendations by the Migration Advisory Committee (MAC), that it will adopt a new single skills-based immigration system from 1 January 2021.  The new system will put an end to the EU free movement of people regime and will be a system where it is “a worker’s skills that matter, not which country they come from” and there is a focus on “quality” rather than “quantity”, all with a view to driving up skills and controlling numbers.

Whilst it is clear that following Brexit there will no longer be one immigration system for non-Europeans and one for EU citizens, the true extent of the future immigration policy is not clear. Much of the detail will depend on and future trade agreements and any exemptions agreed in such agreements, as well as, of course, what the final form of the Immigration Rules will look like after an extensive programme of engagement by the Government.

Under the proposals set out in the White Paper, for the majority of individuals wishing to work in the UK, their route to work will depend on whether they are a skilled worker or a temporary short-term worker at all skill levels.

Skilled worker

A route for workers from outside the EU to come to work in the UK in highly skilled jobs already exists, Tier 2 of the Points Based System. The White Paper proposes to extend this whilst making some amendments to achieve the aim of maximising the economic benefits that migrants bring to the UK. The main changes are:

  • A removal of the cap on the number of workers (being 20,700 per year) who can enter under the Tier 2 route for high skilled workers.   There will therefore be no limits on the volume of skilled migrants under that system.
  • The Resident Labour Market Test (which required employers to advertise a job for four weeks and to consider applications from resident workers before allowing applications from migrants) is to be abolished. This currently adds to the length of time the process takes and is not effective in ensuring that settled workers have the first opportunity to fill any vacancy.
  • The skills threshold for workers entering under the new skilled workers route will be lowered to RQF 3 or above (from 6 and above), except in respect of intra-company transfers which will remain at RQF 6. This includes A-level or advanced apprenticeship or Level 3 NVQs. Having said this, the minimum salary threshold of £30,000 may be retained (though the level is something the Government is seeking views on), meaning that (subject to falling within a lower entry level salary threshold or on the shortage occupation list (SOL)) many who may fall within the skills threshold would not satisfy the salary threshold. In fact the Government itself acknowledges that 60% of existing jobs in the intermediate skills level would not meet this salary threshold and it could be argued that a salary threshold of this level favours London and the South East.
  • The SOL which is used to give priority to individuals within the current highly-skilled route cap and to exempt migrants from minimum salary thresholds required for settlement if they are in a shortage occupation, will be kept under review.
  • Nationals from low risk countries should be able to look for work having entered as a visitor and apply to switch to the skilled worker programme, as compared to now where most applications needs to be made out of country.
  • A reform of the process for applying for the right to work. In the current non-EU high skilled route, all organisations seeking to employ persons from outside the EU have to apply and obtain a sponsor licence from the Home Office. As this process will be extended to sponsoring EU citizens, the Government recognises that improvements are required and hopes to improve the administrative burden on sponsors by a greater ability to share and utilise data across government agencies, such as HMRC and the Home Office.   They may also consider the use of umbrella organisations to act as sponsors, a lighter touch regime for trusted employers, as well as a tiered system of sponsorship ranging from a sponsor licence to a transactional system for those who do not need a licence or have small number of vacancies to fill.

Transitional short-term work

The Government acknowledges that certain sectors such as construction and social care have built up a reliance on lower skilled workers from the EU, which will not be assisted by the changes to the skilled workers route. In addition, it acknowledges that some skilled workers will come to the UK to work for shorter periods such as to fulfil a temporary contract.  The Government has however accepted MAC’s recommendation that there will be no route specifically for lower skilled workers or for specific sectors (other than potentially for seasonal agricultural workers).    The future system very much focuses on prioritising skilled migration.  However, for a transitional period after Brexit, there will be a new route for temporary short-term workers at any skill level to come to work in the UK without a sponsor to help employers move smoothly to the new immigration system.  The system will operate as follows:

  • Workers will be able to come to work in the UK for a maximum of twelve months.
  • This will be followed by a cooling off period of a further twelve months to prevent long term working.
  • The worker will not be entitled to access public funds, request a right to extend to stay, switch to other routes, bring dependants or have the right to lead to permanent settlement.
  • The route will only be available to nationals of specified countries, for example those low risk countries with whom the UK negotiates an agreement concerning the supply of labour, including returns arrangements.
  • Workers will need to pay a visa fee to enter under this route and the intention would be that this amount will be increased incrementally each year to incentivise businesses to reduce their reliance on migrant labour.
  • The route will be under review and this may mean imposing a limit on the total number of people able to come under this route, if necessary.
  • By 2025, this route will be reviewed to determine whether there should be any continuing facility for temporary workers to come to the UK.

This route will therefore assist employers in the construction and social care industries in the short term, but it will not provide certainty as to the number of workers from year to year, nor would it appear to be a long term solution. Although, as noted by the Government, there are migrants in the UK undertaking low skilled worker, for example dependents of skilled workers, students, refugees and youth mobility visa holders are permitted to work in the UK, query if the numbers of these are sufficient to plug the potential gap in labour shortages identified by certain sectors.

Other routes

In addition to the above, the Government will also be operating routes from the current system for innovators (via the introduction of a new Start-Up visa route in Spring 2019), exceptional talent (by increasing the number of places available under this route), investors who are looking to make a substantial investment in the UK, as well as other temporary workers such as looking to expand existing youth mobility routes (this permits people from certain countries who are aged 18-30 to come to the UK for two years) and supporting the existing temporary professional worker routes (including Government authorised exchanges, charity workers, religious workers, creative and sporting people and relating to the provision of services under an international agreement). If the EU reciprocates, the UK Government also proposes to make binding commitments regarding a future mobility partnership ensuring that visitors from the EU (including business visitors) will be facilitated, for example, there being no requirement to secure a visit visa. 

Next steps

This White Paper is not the final rules and the Government proposes a 12 month programme of engagement with sectors to listen to views and proposals before drafting the final rules. In addition, as we have discussed much of the detailed exemptions will depend on future trade agreements with countries, including any future working arrangement with the EU. What remains clear is that the Government wishes to continue its commitment to reduce annual net migration to sustainable levels, whilst acknowledging that it needs to support an open, global economy in line with its industrial strategy.

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