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Government announces details of proposed new immigration system

From 1 January 2021 entry into the UK, both for EU/EEA nationals and migrants from outside the EU/EEA, will be based on a new “points based” system.

Summary

On 31 January 2020 the UK left the European Union with a withdrawal agreement. As a result, the UK is now in a period of transition, until the 31 December 2020, during which free movement of EU/EEA nationals into the UK will continue.

On the 19 February 2020 the Government announced details of the new UK Immigration system, which will come into force after the transition period.

From 1 January 2021 entry into the UK, both for EU/EEA nationals and migrants from outside the EU/EEA, will be based on a new “points based” system. This signifies the end of free movement for EU nationals.

The detail

As proposed by the Migration Advisory Committee (MAC) there will be no preferential treatment for EU nationals under the new immigration regime. Prospective migrants both from within the EU/EEA, and outside it, will be subject to the same assessment.

The Government has previously announced that the seldom used Tier 1 ‘Exceptional Talent’ route will be replaced by a new ‘Global Talent Visa’ intended to facilitate immigration for leaders and technical experts across a range of fields, but focussing especially on STEM areas. There is no points-based element to this application.

As anticipated, the system as a whole will prioritise migrants with higher skill-levels, with the proposed rebranding of the current Tier 2 (‘General’) route as the ‘skilled worker visa’. This route will be points-based. Visa applicants will only be granted leave to enter the UK if they gain at least 70 points under the new scheme. Points will be awarded for an applicant’s specific skills, qualifications, area of expertise and English language proficiency. A high proportion of the points awarded will depend on whether the applicant clears the new, reduced, salary threshold of £25,600 per annum (formerly £30,000).

As currently, this route will be sponsorship based. Applicants must have a job offer in place, subject to the new reduced minimum salary requirements. It is important to note that the Government has also responded to concerns about a potential shortage of labour at an intermediate level, by reducing the threshold for eligibility as a ‘skilled worker’. Applicants are no longer required to have a university degree, as education to A level standard or equivalent will result in points being awarded under the new system.

Importantly, this minimum salary can be flexed downwards (to a minimum of £20,480) where an applicant is otherwise highly qualified, or works in a shortage occupation.

In an interesting change to the current regime, the Government also proposes to create a broader, unsponsored entry route, within the points-based system and running alongside the new ‘skilled worker’ scheme. The aim is to allow a small number of highly skilled people in certain sectors to enter the UK without a job offer. However, it appears that this proposal is in its infancy and very little detail is provided. How this unsponsored route would interact with the ‘Global Talent Visa’ arrangements is not yet clear.

Controversially, there will be no designated entry route for lower skilled workers. In response to fears of prospective labour shortage in the lowest skilled roles, the Government has stated that UK businesses will need to "adapt and adjust" and instead invest in "staff retention, productivity, and wider investment in technology and automation" to bridge any gaps.

Comment

We will only be able to ‘drill down’ into the detail of how the new regime will work when changes are made to the immigration rules and Government guidance. However, the recent announcement and policy statement clearly set out the proposed framework.

Supporters of the proposals argue that the ‘level playing field’ established by the proposed new regime will redress the balance between previously unlimited immigration from within the EEA/EU, and immigration from the rest of the world, for example former Commonwealth countries such as India (which has always been subject to rigorous selection criteria). Many also support the Government’s stated aim of tipping migration back towards the higher end of the skills spectrum, to attract those migrants that have most to contribute to the UK, both economically and in terms of expertise.

However, critics of the system say it will almost entirely close the door on the recruitment of low-skilled, low-wage migrants from the EU, and that some degree of labour shortage is inevitable. However, the Government has responded that cohort of EU workers currently resident in the UK, together with lower-skilled workers drawn from the domestic labour market, should be sufficient to meet these needs.

Of course, any EU/EEA nationals resident in the UK before 31 December 2020 can still apply to settle in the UK through the EU Settlement Scheme, until the deadline of 30 June 2021. Moreover, the Seasonal Workers Pilot scheme will also be expanded from 2,500 to 10,000 places recognising the significant reliance the agricultural sector has on low-skilled temporary workers.

Employer actions

For employers who currently depend on lower skilled workers from the EU, it is now clear that the new immigration regime will not meet this need. Careful planning will be needed to determine where how such roles will be filled going forward, and whether there is any scope to flex salaries to bring some key roles within the ‘skilled worker’ regime if necessary.

It will also be crucial for employers who wish to employ EU nationals at an intermediate or highly skilled level to obtain a sponsor license if the organisation does not currently hold one.

More positively, the current annual cap on the number of skilled workers that can enter the UK will be lifted under the new regime, as this upper limit had been criticised as arbitrary and unpredictable. This will hopefully mean that the visa application process will be more flexible and user-friendly for employers. The onerous ‘Resident Labour Market Test’ (RLMT) will also be abolished, removing a time-consuming step from the recruitment process.

To find out more about how your organisation can prepare, contact Mandy Higgins, Partner in the Employment, Pensions and Immigration team at (mandy.higgins@weightmans.com).

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