Points Based System

7 immigration changes you need to be aware of by Charlotte Rubin

Since 1 January, free movement of people, goods and services has officially ended between the EU and the UK. After months of uncertainty and negotiations, the EU and the UK finally came to agreement on a last-minute trade deal just a week before the end of the transition period. As for the movement of people, freedom of movement ended on 1 January and the new immigration rules, applicable to all non-British citizens (except people with Irish citizenship) have come into full effect. Here are 7 things which changed overnight, and which affect how people live, work and travel in the EU and the UK:

1. The new UK immigration system

On 1 January 2021, the all new, all different, points-based immigration system came into force. All foreign nationals (except Irish nationals) wanting to move to the UK will have to apply and pay for a visa under this system. The government has stated that the new system aims to attract people who will contribute to the UK economy. The basics of the new system include a minimum income threshold (requiring a minimum salary of £25,600 for skilled workers and £20,480 for those with job offers in a shortage occupation or in possession of a PhD relevant to the job), a preference for skilled over unskilled workers (“skilled” meaning people with a certain level of education or training), and an increased cost of visa applications. All applicants also have to pay a health surcharge of £624 per person per year, unless they are healthcare workers.

For a summary of how the points-based system works, check out our blogpost on the topic.

2. UK citizens traveling to the EU

UK nationals can still travel to countries within the Schengen area (which comprises most EU countries as well as Switzerland, Liechtenstein and Norway) without a visa, but no longer for unlimited periods of time, and with additional requirements.

Regarding time limits, UK citizens can spend up to 90 days out of any 180-day period in the Schengen area. In order to be able to cross the border, they will have to have at least six months before their passport expires, and have travel insurance with health coverage. Obviously, UK citizens will no longer be able to use the EU priority lanes at airports or other border crossings.

EU agreements which previously ensured things like no roaming or COVID-19 related arrangements such as travel corridors/exemptions during the pandemic will stop applying. This is a significant change; travellers from the UK are not able to visit the EU at the moment except for specific essential reasons.

3. UK citizens living in the EU

The rights of UK citizens who lived lawfully in the EU before 31 December 2020 were already protected to a certain extent under the Withdrawal Agreement. However, to enjoy those protections, UK citizens living in EU countries should check their country of residence’s specific rules and processes to ensure they can retain those rights. They may need to register or apply for residency, or apply for new documents evidencing their right to stay, or adhere to certain other requirements such as having a job, for example.

4. UK citizens moving to the EU

UK citizens looking to move to the EU now, after 1 January 2021, will no longer have an automatic right to live, work and study or retire there. They will need to apply for a visa if they are traveling for any other reason than tourism, and especially if it is on a more permanent basis. The rules and eligibility for visas will vary country by country.

The one significant exception is for UK citizens planning to move to Ireland. Thanks to the Common Travel Area, special rules apply to the Irish border.

5. EU citizens living in the UK

The rights of EU citizens living lawfully in the UK were already protected under the Withdrawal Agreement. Until 30 June 2021, EU citizens living lawfully in the UK will retain all their rights automatically. If they want to retain their rights further, they will need to apply to the EU Settlement Scheme by that deadline of 30 June 2021, or else they will be unlawful residents and potentially liable for deportation.

Again, because of the Common Travel Area, rights of Irish citizens will not be affected.

If you need any help or advice with your EU Settlement Scheme application, check out our blog posts on the topic, as well as our seminars, and resources.

6. EU citizens moving to the UK

EU citizens moving to the UK after 1 January 2021 no longer have the automatic right to live, work and study here. They instead have to apply under one of the routes available under the points-based system. For more information on the points-based system, check out our resources and summaries.

7. The exception of Northern Ireland

The recent trade agreement includes a section on Northern Ireland, where the EU and the UK have agreed to keep an invisible border (without checkpoints) between the Republic of Ireland (which remains an EU Member State) and Northern Ireland (which is no longer in the EU). There will also be no tariffs (extra charges on goods) for most trade between Great Britain and Northern Ireland. In exchange for this soft border, Northern Ireland will have to continue complying with many of the EU’s rules such as product standards and safety.

If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.

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.

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