Law and Policy

At what cost do we take back control? The new points-based system explained by Charlotte Rubin

The United Kingdom (UK) left the European Union (EU) on 31 January 2020. Since then, the government has been rolling out changes to the immigration system, adapting it to a world without free movement to and from Europe. Today, the government finally revealed its plan for post-Brexit economic migration in Britain. At its core is the idea of “taking back control,” a slogan which won the 2016 Brexit referendum, implemented through the end of free movement, a new visa system for EU and third-party nationals alike and a focus on “skilled migrants” to reduce overall immigration.

A transition…

Under the current immigration rules, EU citizens do not need a visa to work and live in the UK because they benefit from freedom of movement. Those from outside the EU have to meet certain requirements such as English language skills, sponsorship by a company and a salary threshold in order to apply for a visa. There is a cap of 21,000 on the number of visas awarded per year.

Following the new plan, freedom of movement with the EU will end, and EU nationals will be subject to the same exact rules as non-EU nationals. As such, people coming to the UK from any country in the world for the purpose of work or study, other than some short-term business visitors and short-term students, will have to obtain a visa for which they will pay a fee. In addition, employers will have to pay an Immigration Skills surcharge on their migrant employees, and migrants from in and outside of the EU will have to pay an Immigration Health Surcharge. The only group unaffected by the new rules are Irish nationals, which the government states will be able to enter and exit the UK the same way they always have.

… to an Australian points-based system?

Freedom of movement will be replaced by with what the government calls a points-based system, supposedly modelled after the Australian immigration system which allows economic migrants to settle if they can demonstrate that they have a blend of skills and qualifications adding up to enough points. The selling point of a true points-based system is its flexibility, as it allows migrants to mix and match from a list of characteristics to reach the necessary threshold, and then settle in the host country without having to meet any mandatory requirements, such as an employment sponsorship as one needs in the US for example.

The government proposals released today, however, fail to offer that flexibility and probably explains the complete absence of the term ‘Australia-style’ system. The plan requires all economic migrants wanting to come to the UK to fulfil three essential requirements, which are worth 50 points all together. In addition to that, individuals will have to score another 20 points based on their salary expectations to reach 70 points overall, and be eligible to apply for a visa. The minimum salary threshold to reach 70 points automatically is set at £25,600. If the applicant earns less than that required minimum salary threshold, but no less than £20,480, they may still be able to reach 70 points by demonstrating that they have a job offer in a specific shortage occupation such as nursing, or that they have a PhD relevant to the job. The policy paper specifically states that there will be no regional concessions to different parts of the UK, nor will there be a dedicated route for self-employed people.

The three essential requirements are knowledge of the English language, a job offer from an approved sponsor, and a job at the appropriate skill level. These mandatory requirements differentiate the system from its Australian counterpart, and therefore, the plan is not a true points-based system. Especially the job offer requirement flies in the face of the Australian analogy, where every year, the largest percentage of new economic permanent resident visas are awarded to individuals without a job offer, but who make up for it with other skills or abilities from the list.

(Un)skilled workers

For highly-skilled workers, the government laid out its extended Global Talent visa route on the day Britain left the EU. Through this scheme, the most highly skilled, who can achieve the required level of points, will be able to enter the UK without a job offer if they are endorsed by a relevant and competent body. For now, this forms the only exception to the job offer requirement, although the policy plan promises to roll out a broader unsponsored route within the points-based system to run alongside the employer-led system in the future.

The appropriate skill level under the points-based system is set at the equivalent to A-levels. Anyone who does not meet that level will not be able to apply, as it is one of the mandatory requirements. Additionally, the plan explicitly states that there will be no general low-skilled or temporary work route ‘…shifting the focus of [the UK] economy away from a reliance on cheap labour from Europe…’, leaving immense labour shortages in specific industries. The list of low-skilled workers industries includes waiters, waitresses, elementary agriculture workers and fishery workers. The report unhelpfully states ‘Employers will need to adjust.’

Special arrangements are put in place for certain sectors such as scientists, graduates, NHS workers, to fill the gap, but these arrangements are unlikely to resolve the immense labour shortage created. The cap for the agricultural sector, for example, is increasing to 10,000 places per year for seasonal workers who harvest the fields, but remains far below the National Farmers’ Union’s (NFU) demands for 70,000 temporary visas in 2021. Nothing is mentioned of other groups likely to get caught up in the low-skilled workers group such as care home workers, waiters, cleaners or domestic workers. This drew immediate criticism from people in the sector, as the hospitality sector, for instance, famously relies on an EU national workforce, with Pret A Manger reporting that only one in 50 job applicants was a British national in 2018.

The newly released plan indicates a major overhaul in the UK’s approach to economic migration. It does not, however, affect students, family migration, or asylum law. Notably, none of these changes will take effect immediately. The transitional period, in which EU nationals are still free to exercise their free movement rights in the same way they were when the UK was still a part of the EU, is set to end on 31 December 2020. On 1 January 2021, then, is when the proposed changes will come into force. Even then, they will not take effect retroactively. As such, they will not affect the millions of EU citizens already living in the UK, and the job market is not going to change overnight. They will, however, change the composition of who comes and stays in the UK in the future. But for the 2016 Brexit voters, that future may be too far away to offer satisfaction.

“Teachers tax” for EU nationals: fake news or facts? by Charlotte Rubin

Earlier this month, it was reported that EU citizens face a “teachers tax” of £4,345 over 5 years if they want to come teach in the UK after Brexit. Although not factually incorrect, this statement does not reflect the law – or the reality – of teachers working in the UK.

There is no such thing as a “teachers’ tax.” There is simply an immigration system already in place which in consequence of the Brexit vote will apply to anyone who does not fall under the umbrella of exemptions to that system. In other words, after Brexit, EU citizens will fall under the same immigration regime as third party (non-EU) nationals. Curbing immigration by ending free movement in this way was one of the Leave-campaign’s main selling points, and largely how they won the 2016 referendum.

Effectively, the end of free movement means that everyone, including EU nationals, will need to apply for a visa if they want to enter and live in the UK post-Brexit. The Johnson government has drawn up a plan of what this would look like. Needless to say, under this plan, getting a visa costs money. The Tier 2 visa, which is the working visa for which teachers would have to apply if the rules stay as they are now, costs £1220 if it is a permit for longer than 3 years. In addition to that, the government has stated that any non-British nationals will be liable to pay a yearly NHS immigration surcharge, which all non-EU migrants already pay today. The price of the immigration surcharge is set to go up to £800 a year. If you add up 5 years’ worth of immigration surcharge with the visa fees, it will cost at least £4,345 to live and work in the UK for five years after Brexit, explaining the figure that The Independent alludes to.

Some groups of special workers will have different requirements. The main group of workers with guaranteed special status is NHS workers. The Tory manifesto promises to alleviate the burden of immigration for EU workers with NHS job offers by offering cheaper visa fees and fast-track entry. It is their attempt to ensure that the NHS survives Brexit, labour shortages are filled and employment targets met. It is not unimaginable that if the government recognises a labour shortage and reliance on Europe for the NHS, it may do so for other fields and professions as well.

In short, unless the government implements a special exemption for teachers, which may be a good idea considering the labour shortage in the teaching profession, then yes, they too, like any non-British nationals in the UK, will have to pay for immigration services and the cost of these applications is not to be underestimated. But it is not a tax on teachers, as the Independent article seems to imply. Rather, it is simply the price tag which comes attached to the UK immigration system, which, after Brexit, will apply to EU and non-EU nationals alike.

What does immigration policy look like under the newly-elected Conservative government? by Charlotte Rubin

Last week’s general election means the Conservative Party now has a clear majority in government to fulfil the many promises they made in their manifesto, including major overhauls to immigration policy. Not only did Boris Johnson vow to get Brexit done by the New Year, but his party also plans to put EU nationals on the same level as third party nationals once free movement law ends. This in and of itself is a radical approach to immigration law, and will have major consequences for EU citizens in the UK.

After Brexit, once EU nationals are levelled with third party nationals, the conservatives want to introduce what they call a points-based immigration system, which they proclaim to base on the Australian visa system. The plan, broadly, is to introduce three visa categories after Brexit, for which anyone who moves to the UK will have to apply, and which replace existing categories.

The first is the “Exceptional Talent/Contribution” category, and includes the entrepreneur and investor visa. These visas are geared towards “highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, sponsored entrepreneurs setting up a new business or investors.” These people will not require a job offer and will receive fast-track entry to the UK. This category is not dissimilar from the current Tier 1 visa category, albeit with some minor changes.

The second category is for skilled workers, and to some extent, is a rebrand of the current Tier 2 category. The vast majority of these visas would require a job offer, in line with how work visas are allocated to third party nationals now. The skilled workers category is the only way for workers who meet the criteria of the points-based system and have a confirmed job offer to get limited leave to remain. It will effectively require all non-British nationals to prove that they have a job offer as well as reach the amount of points required under the points-based system. Needless to say, implementing this will constitute the most significant change compared to free movement law, which is currently in force, as it requires EU national to comply with visa requirements. This will have a massive impact on fields such as hospitality, where EU nationals make up more than half of the workforce, and the NHS. The Conservative party propose to make up for that potential labour shortage by introducing fast-track entry and reduced fees for certain special types of work, such as a NHS specific visa.

The general idea behind a points-based system is that people are scored on their personal attributes such as language skills, education, age and work experience. If their score hits the minimum required, they can acquire a visa. Crucially, there is no one fixed way to score enough points; a plethora of work experience can make up for older age and excellent language skills might make up for lack of formal education. As long as an individual’s different attributes add up to enough points, they will be granted a visa. The key point about points-based systems is not that they are inherently liberal or progressive; whether it is a liberal system will depend on how points are awarded. Rather, the key feature is their flexibility and the ability to get enough points by making any combination of characteristics. That is how the Australian points-based system works.

Contrastingly, the UK immigration system today is based on mandatory requirements. This is a system where applicants need to tick all the boxes in order to be granted a visa. For example, an applicant will need to prove his language skills, have a certain amount in savings, show that they have a job offer AND show that they will be making a minimum salary. If the individual lacks one of those requirements the visa will be refused, that is how simple it is.

The issues with the Tories’ proposals is that they want the best of both worlds. They want to introduce point-based characteristics, but keep the mandatory requirement of a job offer, combining mandatory requirements with points-based elements. Essentially, they want a points-based system where, after making the points-based selection, they can cherry pick who is granted a visa and who is not. As such, although they like to call it a points-based system, it not really points-based, and it is certainly not as simple or easy to navigate as portrayed by the Party.

The third category is the “sector-specific rules-based” category, which will be made up of specific temporary schemes such as for low-skilled labour, youth mobility or short-term visits. These visas will be time-limited and will not provide a path to settlement. They are how the government will attempt to match the demand for workers in specific sectors with enough visas to supply that demand. Supposedly, these visas will replace the free movement of labour with state planning. Deciding which markets need workers will be outsourced from the Home Office to the Migration Advisory Committee (MAC). This means that the MAC would react to gaps in the economy, flag them up, and the government will then create a temporary visa category to fill the gap. These will be revised on an ongoing basis based on expert advice from the MAC. In other words, the temporary visas will be reactionary in nature. They will be time-limited and will not provide a path to settlement. If this sounds difficult, that’s because it is. The economy adapts to reality more quickly than the law, and new policy takes months, if not years, to come into force. By the time a new visa category actually opens, the gap in the job market it was trying to fill may well have been resolved by market forces.

As an attentive reader may notice, the only migrants mentioned in the Conservative policy proposals are economic immigrants. The manifesto does not mention changes to other areas of the current immigration regime. It retains the status quo of Theresa May’s controversial hostile environment policies, fails to tackle legal aid cuts, and does not propose any change to the clear human rights violation of indefinite detention, for example. Additionally, the manifesto indicates an attack on judicial review
. Since the removal and erosion of appeal rights in the 2014 Immigration Act, judicial review is now often the only recourse to justice for many people who have been wronged by the immigration system. Reforming judicial review, and limiting its scope, removes another layer of checks and balances on Home Office powers, suggesting that not only labour rights, but also human rights, are set to be qualified and watered down after Brexit and once this government starts rolling out policy.

A week before the election: Comparing manifestos by Charlotte Rubin

When New Labour came to power in 1997, just 3% of the public cited immigration as a key issue. By the time of the EU referendum in 2016, that figure was 48%. As a consequence, migration has become a key issue in political campaigns on all sides of the spectrum. For years, MPs have relied on strong rhetoric about migration in setting ambitious goals for “net migration”, installing the hostile environment and finally, in their approach to Brexit. In reality, harsh numerical targets have often not been met, and promises have failed to materialise. As evidenced by the three major party manifestos before the election of 12 December, immigration remains a hot topic. We take a look at the manifestos of the Liberal Democrats, Labour and the ruling Conservative party, and what they intend to do about an immigration system that desperately needs reform to help you make an informed decision.

One major issue on which the three parties have outlined a clear and very different strategy is Brexit. The Liberal Democrats, staunch Remainers from the very beginning, still promise that if they are elected, they will revoke Article 50, end Brexit and save freedom of movement for EEA nationals. The Labour Party backs a second referendum, promising that if they win, they will negotiate a new deal within three months, and present it to the people alongside an option to remain in the Union within six months – this time, as a legally binding referendum. The Tories remain committed to Brexit no matter what it may cost and promise to deliver it by January, based on Boris Johnson’s deal.

In a post-Brexit Britain, the Conservative Party Manifesto sets out that the EU Settlement Scheme (EUSS) will remain as it is, and that in the future EU nationals will be treated exactly the same as other foreign nationals. As such, people coming into the country from the EU will only be able to access unemployment, housing, and child benefits after five years, in the way non-EEA migrants currently do. They will also have to pay an NHS health surcharge to access public health services, the price of which the Tories promise to increase to reflect the full cost of use. The only care that will still be free under a Tory government is emergency care for those in need.

Labour, on the other hand, have a different approach. They propose to end the uncertainty of the EUSS by making it a declaratory scheme instead of an application process. A declaratory scheme would essentially establish that the rights one has now are carried through with them for their lifetime. Residents can then obtain physical evidence of their lawful lifetime residence right by asking for it. Lobbying groups such as the 3 million have endorsed such a declaratory scheme, arguing it ends the uncertainty of the EUSS, shields against the hostile environment policies, as well as guarantees favourable treatment of UK citizens living abroad in return.

The Liberal Democrats, then, have no proposals in place for if Brexit goes ahead. Their view is that they will do anything to stop it from happening; even if they do not win the election, the party says they will back a second referendum and campaign to remain.

On immigration policy, both Labour and the Liberal Democrats promise to end the hostile environment, decriminalise illegal working, and end indefinite detention. The Liberal Democrats openly advocate for a 28-day-time limit on detention, and for any decision to detain an individual for longer than 72 hours to be approved by the courts. This position was recommended to Parliament by the Joint Committee on Human Rights in their
16th report of the 2017-2019 session. Additionally, the LibDems want to close seven out of nine detention centres currently open in the UK, whereas Labour promises to close two of them, and to use the immediate savings towards a fund of £20 million to support the survivors of modern slavery, human trafficking and domestic violence.

All parties promise support for victims of the Windrush scandal, with the Conservative party offering to build a memorial for the Windrush generation. In the same symbolistic vein, the Tories have moved away from their rhetoric of “reducing net migration” although their manifesto still states that they will “keep the numbers down.” They propose to do this by instating a points-based system not unlike the one in Australia. The points-based system would be based on three pillars: education, English language skills, and criminality. The Tories promises to make decisions on who comes to this country on the basis of the skills they have and the contribution they can make to the country – not where they come from. The visa system, under the points-based system, would be rebooted, with many old visa routes being brought back to life, such as the post-study visa extension, the NHS visa, and the new start-up visa. The Tories also promise entry and exit checks, emphasising that the British people will be able to take back control of their borders.

The Liberal Democrats propose the most radical reforms to the immigration system as a whole. Not only do they promise to break down existing barriers as well as add new routes to permanent status - they also propose to remove the exemption of the Data Protection Act for immigration as well as separate enforcement and border control from decision-making. The former measure protects data privacy by establishing a firewall to prevent public agencies from sharing personal information with the Home Office for the purposes of immigration enforcement. The latter would prevent perverse factors from playing a role in decision-making by taking policymaking out of the Home Office altogether. Instead, the Liberal Democrats want to establish a new arms-length, non-political agency to take over processing applications, thus increasing the separation of power. As such, they would move policymaking on work permits and student visas out of the Home Office and into the Departments for Business and Education respectively. They would also move asylum policymaking from the Home Office to the Department for International Development and establish a dedicated unit to improve the speed and quality of decision-making. This may seem like a welcome development for those who have said that the Home Office needs to change its approach to asylum from the ground up, but the Institute of Government report was equivocal about the benefits of such separation. It could trouble accountability by splitting up decision-making, and case management where individuals and families don’t fit neatly into one category could be difficult. And finally, the Liberal Democrats, like Labour, will seek to reduce the fee for registering a child as a British citizen from £1,012 to the cost of administration – something that we’ve advocated for ourselves.


Labour, then, says the Tories have required landlords, teachers and medical staff to work as unpaid immigration officers when they created a hostile environment, instead of setting up an effective border control. A Labour government will therefore review the border controls to make them more effective. They also promise to scrap the 2014 Immigration Act passed by the then-Conservative government, restore legal aid cuts, and end the deportation of family members of people entitled to be here and end the minimum income requirements which separate families. They focus on cooperation with Europe and especially France to resume rescue missions in the Mediterranean and end the horrific camps and homelessness which the current immigration regime has led to. Similarly to the Liberal Democrats, Labour will allow asylum seekers to work whilst awaiting a decision on their status, and decriminalise illegal working.

All three parties claim to be advocating for humane, fair and compassionate immigration regimes. It is now up to the voters to show whose programme is most convincing.


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