Law and Policy

The impact of COVID-19 on the immigration system: the good, the bad and the recommendations by Charlotte Rubin

COVID-19 makes it difficult, if not impossible to operate a normal immigration system. Travel restrictions make entering or leaving the UK a complex process, implementing ordinary work or income requirements for visas can undermine public health messages, and to make matters worse, the Home Office itself has been heavily impacted by the government-imposed lockdown, as their staffing levels have suffered and their workload is constantly changing. It is therefore not surprising that numerous changes aimed at ensuring that the UK’s immigration and visa systems continues to function properly have been announced in the past few months. Last week, a cross-party Home Affairs Select Committee published its report on the Home Office response to the impact of COVID-19 on the immigration and visa systems.

In the report, the Committee welcomes the government decision to scrap the immigration health surcharge for all NHS and social care workers, calling it “a recognition of the contribution made by the front-line workers fighting COVID-19.” However, it is said not to go far enough. Committee Chair Yvette Cooper MP said: “It is very welcome that the Government has agreed to waive the Immigration Health Surcharge and extend the bereavement scheme for NHS and social care workers. However, most care workers and low-paid NHS support staff are still excluded from receiving the free one-year visa extension granted to clinical staff, and as a result could be facing costs of hundreds or thousands of pounds this summer.

The Committee therefore recommends to open free visa extensions to the same range of employees as they have done for the immigration health surcharge waiver. It also recommends simplifying (and lowering the price tag) of paths to British citizenship and permanent residency to those health and social care workers who risked their lives during the pandemic.

“Excluding the care workers who hold dying residents' hands, the cleaners who scrub the door handles and floors of the COVID-19 wards, or the porters who take patients to intensive care is just wrong. The Government must ensure that all measures of support for NHS and care workers apply to all frontline staff equally, irrespective of grade or job title.”

The Committee also evaluated visa extensions for non-NHS staff. When announcing the Home Office policy change which allowed all visas due to expire before 31 July 2020 to be extended, the Home Secretary said that “nobody will be punished for circumstances outside of their control”. To make good on that promise, the Committee recommends that the Home Office implement automatic, blanket visa extensions instead of making individuals apply for them via email, to ensure that individuals do not overstay their visa unintentionally.

Highlighting a concern which lawyers and immigration experts flagged up immediately after the visa extensions were made public, the report reiterates there is currently no legal basis for any of these extensions. Individuals relying on government policy announcements (which can be changed at any given time and lack legal foundation) need legal reassurance that their extension is lawful and valid and that they can continue to live and work in the UK. The Committee therefore recommends that the Home Office implements a statutory instrument (a form of secondary legislation) to clarify the legal basis of both the extension of leave for all individuals who are unable to leave the country before the expiry of their current visa, and for the automatic extension of leave offered to NHS staff.

Analysing the financial impact of the coronavirus on the visa system as a whole, the report acknowledges the disruption and economic impact of COVID-19, recognising that many individuals have lost their jobs or seen their income significantly reduced through no fault of their own. It is within this context that the Committee recommends adapting visa requirements such as the Minimum Income requirement to take loss of income due to COVID-19 into account when evaluating applications. In order to ensure public health and safety for all, the Government is also urged to lift the No Recourse to Public Funds (NRPF) conditions, which caused turmoil a few weeks ago when it seemed like the PM was not aware of the policy’s existence. The Committee Chair said the government “needs to make sure that these exceptional Covid-19 circumstances aren't pushing families into desperate hardship because of the NRPF rules which prevent them getting the urgent support they need.”

Last but not least, the Home Affairs Committee evaluated the impact of the coronavirus on the EU Settlement Scheme (EUSS), calling upon the Home Office to step up their efforts to identify vulnerable persons who may not have applied to the EUSS yet.

The report shows that COVID-19 has exacerbated the underlying problems of the EUSS. One of those problems is the lack of information on how the Home Office will approach late applications (applications made after the deadline of 30 June 2021.) The Home Affairs Committee recommendations include a clarification of what support will be provided to assist vulnerable individuals in applying, especially for children in care, given that there is a low application rate for that particular group of people. At the minimum, it is said local authorities should increase their work to identify EU children in care who have not yet applied to the scheme, but ideally, more comprehensive measures should be implemented. The Committee therefore recommends that the Home Office grant automatic Settled Status to all children in care and care leavers, without requiring them to explicitly apply.

The Committee also calls on the Home Office to clarify the legal position of those with pre-settled status. During the pandemic, people with pre-settled status have questioned whether they are able to access all public funds, specifically whether they can get benefits, or whether those rights are reserved for people with indefinite leave to remain only.

To sum up, just like many experts in the area, the Committee is willing to cut the Home Office some slack in these unprecedented times. It is appreciated that going through the normal routes to introduce new policies is made complicated by circumstances outside of the government’s control. However, it is in times like these that guidance needs to be clear, unambiguous, and publicly available so that practitioners know the law, visa holders feel secure, and the Home Office act legally to address the issues we face.

Statement of Changes to the Immigration Rules and EUSS quarterly statistics out today by Charlotte Rubin

An eventful day in the immigration world, as the Home Office released a Statement of Changes to the Immigration Rules, as well as their most recent set of EU Settlement Scheme quarterly statistics.

The Statement of Changes to the Immigration rules carries some good news. For one, it confirms that victims of domestic violence for durable partners will be eligible for status under the EUSS. This is in line with other government initiatives to tackle domestic abuse in the UK.

In the same vein, any family member within scope of the EUSS whose family relationship with an EEA citizen breaks down is now eligible for status under the EUSS. Previously, only ex-spouses and ex-civil partners of EEA citizens could apply to retain a right of residence after divorce or breakdown of a relationship.

Additionally, for family members of the people of Northern Ireland, the proposed changes extend the EUSS to dual Irish/British citizens, allowing eligible family members of the people of Northern Ireland to apply for UK immigration status under the Scheme on the same terms as the family members of Irish citizens in the UK. Prior to this change, family members of Northern Irish people could not access the EUSS – under the new rules, they are able to do so on the same basis as those of the Republic of Ireland.

These are welcome changes which broaden the applicability of the EUSS. It comes as no surprise, then, that the government considers the EUSS a great success. Today’s EUSS press release boasts that with over a year until the application deadline, currently set at 30 June 2021, almost 3.5 million applications to the scheme, making it the biggest scheme of its kind in British history. 3.1 million of those applications have been concluded, of which 58% were granted settled status, 41% pre-settled status and 1% had other outcomes. Other outcomes include 640 refused, 23,740 withdrawn or void and 10,030 invalid applications.

Most EUSS applications are made online, and are relatively straightforward. But the online service is not available to everyone. The EUSS sets out that applicants must send in paper applications if they don’t have biometric ID documents, or if they are applying on the basis of a derivative right to reside. The latter includes people who are not EU, EEA or Swiss citizens but are applying under the scheme as the family member of a British citizen they lived with in the EU/EEA/Switzerland, the family member of an EU/EEA/Swiss citizen who has become a British citizen, the primary carer of a British, EU, EEA or Swiss citizen, the child of an EU, EEA or Swiss citizen who used to live and work in the UK in education, or such a child’s primary carer.

Immigration lawyers and front-field workers were looking forward to this release of quarterly statistics, as the Home Office had promised to integrate paper applications into the statistics in March, something they had not previously been able to do.
Despite this promise, there is still no information about the paper routes to be found in the newly released statistics. The reason given for failing to deliver on their promise is the COVID-19 pandemic, as the statistics state that it was the Home Office’s “intention to develop electronic integration of the two systems to provide a more complete account of all applications received for the quarterly publication in May 2020, but due to the impacts of Covid-19, this has not been possible.”

The Home Office have also temporarily stopped accepting ID documents by post, which delays the processing paper applications. Nevertheless, the statistics reaffirm that the deadline to apply to the EUSS will not be extended.

Paper applications are amongst the most complex applications under the EUSS, and often represent the most vulnerable individuals in society. As a consequence of the pandemic, charities and outreach projects which assist vulnerable applicants in their applications are unable to operate. As such, the people most unlikely to apply to the EUSS on time (those without ID), and whose applications are most affected by the pandemic (as they have to submit ID documents), are quite literally being left out in the cold: they cannot currently apply, their applications are excluded from the statistics and there is reduced community assistance available. The Home Office is working hard to overcome obstacles and delays caused by the pandemic, and resume normal operation. It is only logical that they should take the same approach towards applicants dealing with hindrances on their side of the process.

In brief, other, non-EUSS related changes to the Immigration Rules include:

  • Changes to the new Start Up and Innovator visa categories, tightening the requirements that endorsing bodies have to take into account when giving their endorsement

  • A change to student visas (Tier 4), whereby all applicants who apply under Appendix W who are sponsored for their studies in the UK by a government or international scholarship agency now have to obtain written consent from the relevant organisation.

  • The new Global Talent visa has been finetuned, as the Rules merge the old Exceptional Talent visa with this new category, and minor amendments have been made at the request of the endorsing bodies.

  • Changes to the Representative of an Overseas Business visa category, restricting its scope. Representative of an Overseas Business visa holders are employees of overseas businesses which do not have a presence in the UK, to be sent to establish a branch or wholly owned subsidiary of the overseas business in the UK. The changes include that the overseas business must be active, trading and intending to maintain their principal place of business outside the UK; that applicants must have the skills, experience, knowledge and authority to represent the overseas business in the UK; and that applicants must be senior employees of the overseas business.

  • Some amendments and clarifications regarding family life, including that if an individual is granted leave as a fiancé(e) or proposed civil partner, this automatically enables the marriage or civil partnership to take place in the UK, as well as clarification for the spent period for applicants under the family rules who have been convicted and sentenced to a period of imprisonment for a period between 12 months to four years is 10 years.

Read the full explanatory note here.


What happens to new-born babies when birth registrations are suspended? By Charlotte Rubin

On Wednesday morning, Prime Minister Boris Johnson and his fiancée Carrie Symonds welcomed a healthy baby boy to this world. The birth of the PM’s son brings some uplifting news in difficult times, as the PM comes out of a tough personal recovery from coronavirus, whilst facing a daunting national crisis for the weeks and months to come. But the PM might not be out of the woods yet. COVID-19 might impact the Prime Minister on a personal level yet again – not by infection this time, but in relation to his new-born son.

In the UK, there is no central government authority to register births. Instead, this has to be done in the area the child was born. Ever since all local authorities closed down their offices on 23 March, birth registration appointments are no longer carried out. Parents of new-born babies in the UK are therefore unable to register their child as normally required, with potentially unduly harsh consequences.

The general rule is that parents need to register the birth of a child with their local authority within 42 days of birth. If they fail to do so, they risk a fine or some other form of reprimand. Fortunately, this rule has been relaxed due to the coronavirus outbreak: government guidance states that no action will be taken against parents who fail to meet the deadline due to no fault of their own. In addition, parents can exceptionally make claims for child benefits and/or universal credit prior to obtaining official birth certificates.

These are welcome changes, but they are not enough. In order to issue ID cards and travel documents, embassies have to see the birth certificates of children born in the UK. As ID cards are currently not being issued, parents cannot obtain passports or ID cards for their new-borns. In other words, the suspension on issuing birth certificates contributes to citizens ending up without identification and travel documents.

For non-British citizens, these concerns are exacerbated even further. In a global pandemic, emergency situations are not rare occurrences. Yet, because new-borns cannot get IDs under the current circumstances, parents cannot travel abroad in those emergencies unless they leave their new-born child behind.

Not only are all non-British parents unable to travel with their children should they need to do so, they also face additional challenges when applying for immigration status in the UK. EU citizens, specifically, will find that applying to the EU Settlement Scheme without a form of ID is a complicated endeavour.

When asked to clarify on these pressing issues, a Home Office official wrote that his office will evaluate on a “case by case basis” any application where a parent is unable to obtain an identity document for their child from an EU27 embassy due to circumstances beyond their control. Concerning the EU Settlement Scheme, the Home Office employee reiterated that the deadline to apply under the scheme is not before 30 June 2021, and, assuming that local authorities will resume their functions soon enough, parents therefore have plenty of time to apply before then, should they be unable to do now.

The case-by-case evaluation proposed by the Home Office is at their discretion and therefore, does not offer a solution to the structural consequences of suspending birth registrations.

In theory, this chaos affects everyone in the same way. One cannot help but wonder whether the PM will face similar obstacles when registering the birth of his son. Might that prompt the Home Office to find a temporary solution to avoid that more citizens, British and European alike, end up without IDs?

New government guidance on points-based system comes at a tactless time by Charlotte Rubin

Every day, at 8PM, millions of people across the country clap for our healthcare workers, an initiative which has been encouraged by the government. Meanwhile, as coronavirus numbers soar to almost a thousand deaths a day in the UK, the Home Office published updated guidance for employers on navigating working visas once the new points-based immigration system comes into force on 1 January 2021. Whilst encouraging signs of solidarity, the government is thus detailing the ins and outs of an immigration system which will likely stop many of the people we clap for from coming to work in the UK once it becomes law.

The new guidance lays out that all workers will have to be sufficiently qualified (at the minimum, they must have A-level equivalence) and speak sufficient English in order to get a visa. Highly skilled workers are the only ones who can come to the UK without a job offer. In order to do so, they need to get an endorsement from a relevant competent body in order to obtain a Global Talent Visa.

Any other individual who wants to come work in the UK will need to have a job offer from an approved sponsor. To become an approved sponsor, employers who want to recruit migrant workers will need to take active steps. They will have to check that their business is eligible, and choose which type of workers they are looking to hire: skilled workers with long-term job offers, or temporary workers. Employers will then have to put in place a framework within their business to deal with the sponsorship process, apply online and pay an application fee ranging from £536 to £1,476, depending on the type of business. The whole process usually takes about 8 weeks. Once they become an approved sponsor, they can recruit people without UK residency to fill their job openings.

If an individual, then, receives a job offer from an approved sponsor, they will need to meet a minimum income threshold on top of the language and skill requirements. The general minimum salary threshold is set at £25,600. For some jobs, the threshold may be higher, if the Home Office estimates that it is a higher paid occupation.

If an individual does not meet the income threshold, they may still be eligible for a visa if they can demonstrate that they have a job offer in a specific shortage occupation or a PhD relevant to the job. For these occupations, the income threshold is lowered to £20,480. The list of shortage occupations, which includes doctors and nurses, is published by the Migrant Advisory Committee.

Concerning lower-skilled workers, the guidance explicitly reiterates that “there will NOT be an immigration route specifically for those who do not meet the skills or salary threshold for the skilled worker route.” The skill level for different jobs can be found in Appendix J of the Immigration Rules.

Considering that the average health care worker in the UK makes £19,080 a year, the timing of this publication seems peculiar to say the least. As our Director suggests, how does it make sense for the Home Office state that care workers, nurses, hospital porters, cleaners, logistics personnel, postal workers, etc. will not be able to apply for visa under the new immigration system in the midst of the Covid-19 crisis? It is hard to imagine that the Home Office has a valid reason for needlessly doubling down on an immigration policy which fails to take care of the workers who, in times of crisis, put everything at risk to take care of us.

From low-skilled to key workers: will the COVID-19 pandemic soften post-Brexit immigration policy? by Charlotte Rubin

Just a month ago, when the government introduced its new points-based immigration system, a lot of workers in the health, food production, and transport industries were considered unskilled workers, and unwelcome in post-Brexit Britain.

The basics of the proposed points-based system are clear. If a worker does not have a secondary school diploma, does not speak English, or their salary falls below £25,600, the door to the UK is closed for them. As it turns out, a lot of these “low-skilled” workers are now considered essential in the fight to manage, control and survive the coronavirus crisis. In the current circumstances, they have been put under additional strain.

The trend to bulk buy has put staff in supermarkets and grocery stores under significant pressure, with one employee writing that him and his co-workers have been working long days on their feet, anticipating the next few weeks to be “a nightmare,” and advising against panic buying. There is no reason to bulk buy: there are no food shortages anywhere in Europe, and supermarkets are staying open throughout nation-wide lockdowns as they are part of a (small) group of essential businesses which are exempt from the new rules.

But this may soon change. Agricultural workers from eastern Europe usually fill the majority of jobs on farms. The combination of Brexit caps on seasonal workers with strict coronavirus travel restrictions has slowed recruitment in agriculture, and the EU labour force is simply not coming through. UK farmers find themselves in a crisis and could face a shortage of 80,000 labourers this summer if the Government fails to intervene. These spots as fruit pickers need to be filled by British workers or fruit and vegetables will be left unpicked, and stocks could be put in danger.

Jobs now classified as “key workers” include NHS staff, social workers, the police and military, and those working in food distribution, energy, utilities and transportation. In other words, the people sustaining essential businesses are, by extent, deemed essential workers, as they help feed and care for a country in standstill.

Only a few weeks ago, Johnson’s government described these people and the jobs they filled as “low skilled”, stating that the government “intends to create a high wage, high-skill, high productivity economy.” If anything, the COVID-19 pandemic highlights the stark dissonance between this government’s policy on who is key in keeping the economy running and the truth on who is actually keeping the country together. It proves that “low-skilled” labour does not equate low-value labour. Recognising these workers as “key” or “essential” is a step towards recognising that they form the backbone of our society and without them, British civilisation would have already collapsed. The question remains whether this will be reflected in immigration policy when all of this blows over, and the pandemic finally dies down.






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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