Immigration Rules

Home Secretary, Priti Patel yesterday announced a “significant change” to the Immigration rules designed to shift the economy away from relying on cheap labour from Europe towards a “high-wage, high skill, high productivity” future. 

At the end of the Brexit transition period on 01 January 2021 the United Kingdom will leave the EU Single market and the free movement of people between the United Kingdom and Europe will no longer apply. The United Kingdom will therefore be free to set its own immigration rules pertaining to the entry and residence of citizens from outside the British Common Travel Area.

The Government has considered whether the UK should adopt an “Australian-style” Points Based System as the ideal model for selecting migrants with the requisite attributes to enable the United Kingdom to flourish as an independent nation outside the EU.

Dipesh Shah, Partner at JMW Solicitors LLP takes a more in-depth look at the proposed changes to the Immigration Rules coming into effect on 01 January 2020 further to the Government shortly introducing an Immigration Bill that is designed to “bring a firm and fair points-based system that will attract the high-skilled workers we need to contribute to our economy, our communities and our public services”.

Phased Approach of Immigration Rules

In light of the fact that the UK Government has written into law that it is committed not to seek an extension of the current transition period a ‘simple’ points based system will be introduced on 01 January 2021 with further reforms scheduled to be implemented at a later date in 2021.

There are however two significant omissions from the proposals- a route for lower skilled workers and one for self-employed persons. For self-employed persons whilst the recommendations proposed by the Migration Advisory Committee was to retain the Tier 1 Entrepreneur category complimented by the new Innovator and Start-Up Visa the Home Office in March 2019 chose to scrap the Tier 1 Entrepreneur category all together and the current immigration system is simply not equipped to attract talented entrepreneurs that the UK require to build a post-Brexit economy.  

Phase One

The Home Office will introduce a new employer-led Points based system under Appendix W ‘Workers’ whereby migrants will score points for the following:

• A confirmed job offer with an approved Home Office Sponsor at RQF Level 3 (A-Level)
• A salary offer of at least £25,600 per annum (a reduction of the current salary level set under the Tier 2 (General) Skilled Worker category of at least £30,000
• Proficiency in the English language
• Applicants being able to ‘trade’ points for salary (minimum salary of £20,480) in exchange for the role being within the shortage occupation or a PhD level role.

The Home Office intend to scrap the cap on the number of people who are able to enter the United Kingdom under the skilled ‘Worker’ route as well as remove the resident labour market test which are very welcome additions to the rules.

Applicants would need to achieve 70 points overall with three fixed characteristics and others as ‘tradeable’ points as follows:

Salary Requirements

One of the biggest concerns raised by employers is the rise in labour costs as a result of the new immigration rules. In this respect the Home Office have specified that employers will still be required to pay sponsored migrants the appropriate salary rate for their role as specified in the Home Office Standard Occupational Codes of Practice. Therefore where this is higher than the general salary threshold the higher salary requirement would need to be met.

Shortage Occupations

The Home Office will commission the Migration Advisory Committee to produce a shortage occupation list covered all various occupations within the skilled worker category which will be kept under review. Where an applicant scores extra points for working in a sector where there is a recognised skills shortage they could be paid less than £25,600.

Costs and Application Fees

It is likely that many employers will be worried by the new immigration rules which will affect both EU citizens as well as citizens outside of the EEA as they will now need to consider the significant cost implications of recruiting non-UK workers. The UK Government will levy the Immigration Skills Surcharge and Immigration Health Surcharge on the same basis as now.

Low Skilled Workers

Perhaps the most contentious change in the immigration rules is the Home Office’s announcement that there will not be an immigration category for ‘low-skilled’ workers even on a temporary or transitional period.

The Migration Advisory Committee’s Report concluded that there will already be sufficient labour in the UK from the 3.2 million European nationals that have already applied to remain in the United Kingdom under the European Settlement Scheme as well as from non-EU citizens who enter the United Kingdom as dependants of skilled workers.

This will however cause concern for employers within the care, construction and hospitality sectors that rely heavily on the free-flow of labour from Europe!

Students

From 01 January 2021 students from Europe will be required to apply under the points based system in the same way as non-EU students whereby they will need an offer from an approved educational institution, English language proficiency and evidence that they have sufficient financial means to meet the cost of their studies and living costs in the United Kingdom.

Phase Two-Return of a Highly Skilled Migrant Programme?

As part of the second phase of changes the Home Office propose to implement in late 2021 a ‘broader unsponsored route’ will be created although it is likely a more cautious approach will be taken by the Home Office where points could be awarded for academic qualifications, age and relevant work experience without the need for additional sponsorship by employers.

Whilst there will not be a revised route for self-employed people which many people expected it is hoped that the

Other Immigration Rules

The Home Office’s ‘broad’ approach for January 2021 will be to extend the current immigration rules relating to Innovators, Sportspeople, Representatives of Overseas Business and Ministers of Religion to EU citizens in the same way they apply currently to non-EU nationals meaning that EU nationals will now need to jump through the same hurdles and requirements as their non-EU counterparts.

Would the fluidity of the Premier League remain the same if football clubs would now be required to obtain visas for their non-UK footballers?

The Home Office will open up key routes from autumn 2020 so that applicants can start to apply ahead of the system taking effect in January 2021. Importantly employers who do not currently have a sponsor licence are encouraged to apply for one now so that they are equipped to deal with the new changes in the immigration rules.