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Post-Brexit immigration: Guidance on points-based visa route and salary thresholds

Back in September 2018, the Migration Advisory Committee (MAC) published its recommendations to the Government regarding the shape and structure of…

Back in September 2018, the Migration Advisory Committee (MAC) published its recommendations to the Government regarding the shape and structure of the UK’s future immigration system (see our earlier update).

On the back of this report, the Government commissioned the MAC to report further on how a ‘points-based’ immigration system (where points are awarded for various attributes to select visa applicants) might be implemented in the UK.

The MAC was also asked to consider the salary thresholds currently in place for entry into the UK under the general Tier 2 (General) Immigration route, and report on whether these thresholds should be reduced, amended, or subject to any regional variations.

The MAC’s response to these two follow-up questions was published in January 2020 and, in broad terms, recommends the limited introduction of a points-based element into the Tier 1 (Exceptional Talent) route of the current immigration regime only. A reduction in the salary thresholds currently applicable to the Tier 2 (General) route is also proposed.

The detail: Points-based immigration

The top tier of the current UK immigration system is the Tier 1 (Exceptional Talent) route. This route does not require a job offer. Rather, applicants are ‘endorsed’ by an approved body in their field (e.g. sport, the arts or technology). This route currently attracts low numbers of applications, and the MAC report suggests that the introduction of a points-based evaluation might boost its effectiveness. It is proposed that points should be awarded for age; qualifications; previous study in the UK and special skills in areas of high priority (such as STEM or health work). The report proposes that English language proficiency should be an essential requirement.

However, currently, the greatest number of work-based immigration applications are made through the Tier 2 (General) route. Applicants need to be ‘sponsored’ by a UK employer and have a job offer in place to use this route. The MAC suggests that this system is working well and should continue (subject to its previous recommendation that the applicable skills level should be reduced to bring an additional 142 non-graduate level medium-skilled qualifications within scope).

The report also reiterates the MAC’s previous recommendation that the annual cap on the number of migrants permitted to enter the UK under Tier 2, should be scrapped, on the grounds that it operates against migrants who might be beneficial to the UK and makes the system unpredictable.

The detail: Salary thresholds

The MAC has resisted pressure to altogether scrap Tier 2 salary thresholds, and states that these should continue to be used as a key eligibility marker. However, it suggests a reduction in the general Tier 2 threshold from the current £30,000 to around £25,600 (based on the salaries paid for eligible Tier 2 roles in 2019).

Importantly, the report proposes that some public sector occupations, with agreed pay-scales, should be exempt entirely from general salary thresholds, and the relevant national pay-scale used instead. The MAC suggests that 24 roles should be exempted including doctors, dentists, nurses, midwives, teachers and social workers. The MAC suggests that, as currently, the higher of the general and occupation-specific threshold for the relevant role should apply.

It is not proposed that salary thresholds should vary by region. However, the possibility of a pilot scheme trialling lower salary thresholds for very remote areas of the UK is floated. The report also states that there is potentially a case for lowering salary thresholds in Northern Ireland, due to the potential concentrated effects of Brexit in the region.

What does this mean for me?

It is important to remember that the role of the MAC is purely advisory and although the government does, in practice, usually adopt its recommendations, it is not obliged to do so. It remains to be seen which of these recommendations will be pulled through into the new immigration regime.

However, the recommended reduction in the salary thresholds for Tier 2 will come as welcome news for many employers. We know that many of our clients are concerned about the future supply of labour where large numbers of EEA workers are currently engaged in low to moderately skilled roles (for example, in sectors such as hospitality and leisure or manufacturing). The MAC initially resisted any reduction in salary thresholds, on the basis that this might cause general downward pressure on wages, and limit the extent to which migrants were able to make a positive contribution to the UK economy. However, it appears that the MAC is now placing greater importance on employers’ calls to make future recruitment from the EEA as affordable as possible.

On a similar note, many employers may be relieved that a full points-based system is not proposed for Tier 2. Broadly speaking, a full points-based system would be more complex and involve a greater number of eligibility criteria. The current Tier 2 system also arguably gives employers more certainty, by allowing them to recruit specific individuals from outside the UK into specific vacancies, rather than choosing, further downstream, from a pool of individuals who have met points-based Tier 2 entry requirements.

Crucially, the proposed retention of a sponsorship requirement for Tier 2 means that employers who currently recruit from the EEA will need a Sponsor Licence to continue to do so under the new immigration regime. If you have any questions or concerns around obtaining a Sponsor Licence for your organisation we would be happy to advise you.

Comment

The changes proposed by the MAC are significant, but fall short of the radical revision of the immigration system the government had previously appeared to advocate.

In his early days as Prime Minister, Boris Johnson had suggested that the UK should move to a full Australian style points-based system, where applicants can enter the country without a job offer, subject to attaining enough ‘points’ for attributes such as age, salary and skills. This would have involved a fundamental change to the current UK system, which requires most applicants to be ‘sponsored’ by a UK employer to enter the country.

The MAC report acknowledges that there is not much time available to make a decision on its recommendations as, currently, any new system of immigration will need to be up and running by 1 January 2021 (in preparation for the end of the transition period on 31 December 2020). Indeed, the government may, for this reason, be relieved that the changes proposed by MAC are relatively limited and impact primarily on Tier 1 (which is relatively infrequently used compared the general Tier 2 route).

The Government are expected to set out their immigration reforms at a cabinet meeting on Friday 14 February 2020. We will provide a further update once the reforms are clear.

Mandy Higgins is a Partner in the Employment, Pensions and Immigration team, if you have any questions about the article please contact Mandy at mandy.higgins@weightmans.com.

The MAC report is available in full online.

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