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.

Brexit Day immigration update: which changes to the immigration rules will take immediate effect? By Charlotte Rubin

On 29 March 2017, the United Kingdom notified the European Council of its intention to leave the European Union, in accordance with Article 50 of the Treaty on European Union. After almost three years of delay, powerplay and disarray, the day has finally come. Yesterday, the European Parliament officially approved the Withdrawal Agreement. Emotional but sober images of Remain MEPs singing Auld Lang Syne as MEPs signed the Agreement. At 23:00 tonight the British Union flag will be removed from the European institutions in Brussels, and the EU flag lowered from City Hall in London. The UK will officially no longer be a part of the European Union. In anticipation of this, steps have been taken to prepare the country for a complete upheaval of the legal and political framework in the UK.

In an act of defiance, the Scottish government narrowly won a vote to keep the EU flag flying over the Edinburgh parliament building after Brexit. Because, as Fiona Hyslop, cabinet secretary for culture, tourism and external affairs, stated, “at times of uncertainty and disruption, symbols matter.”

And symbols do matter. They do not, however, define what will happen to EU citizens living in the UK in practice – not in the short term. What will change, here and now, for EU citizens coming to the UK and the other way around? Obviously, a lot. Today the government published a Statement of changes to the Immigration Rules, officialising the first immediate change in the law of the UK in practice.

It introduces a new visa category called “Global Talent.” This will replace the existing Tier 1 (Exceptional Talent) category. The Global Talent visa is branded as a new type of visa for talented and promising individuals in the fields of science, digital technology, arts and culture wanting to work and research in the UK.

The process to receive this visa is not dissimilar from the old Exceptional Talent route: Global Talent applicants must hold an endorsement from an organisation engaged by the Home office to develop sector-specific criteria, just like before. The main difference is that the new Global Talent category will not be subject to a cap on the number of applicants, whereas the ole Exceptional Talent category was capped at 2000 places per year. The removal of the cap is supposed to ensure that migrants who can meet the qualifying criteria will be able to secure entry to the UK. Applicants will be able to choose how much leave, in whole years, up to a maximum of 5 years they wish to be granted in a single application, and pay their immigration health surcharge accordingly.

The new category will take effect on 20 February 2020 – real and tangible changes to many other areas of the law will follow until the end of the transition period in June 2021. Incremental change as well as major overhauls will transform the UK after Brexit, including Scotland, and no flag waving above Holyrood will change that.

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.

We use cookies on this site to improve your experience. We only use anonymous cookies so we'll assume you are OK with this. Read our 'Extras' section for more details.