The Government have today published a policy statement on their proposals ‘to fulfil our commitment to the British public and take back control of our borders’. The policy announcement touts it as an approach which ‘will transform the way in which all migrants come to the UK’. This is a significant overstatement.
The only ‘transformational’ element is the confirmation of the end of free movement for EU citizens. The lack of any transitional provisions for EU citizens following the end of the implementation period on 31 December 2020 marks a significant change to the way UK immigration operates but the proposals contained in the policy are not themselves novel.
Immigration lawyers are tired of saying this on repeat but the UK has had a ‘points based system’ since 2008. The proposals announced today represent remarkably little change to the systems which have been in place for almost 12 years. Rather, the biggest change flowing from today’s announcement is the inclusion of EU citizens within that framework. I don’t mean to understate this, rather emphasise that it is the confirmation that we are ending free movement in one fell swoop that will completely change how immigration operates, not the intricacies of the new system.
That said, there are some other changes to the scheme for workers with a job offer (currently known as Tier 2) including lowering the existing skill and salary thresholds, scrapping of the resident labour market test and suspending the cap on numbers of applicants. There is also an introduction of ‘tradable’ points for relevant PhDs and shortage occupation roles.
Although the cap has been removed, cost will pose a more serious barrier to entry under this route. With Home Office fees, Immigration Skills Charge and Immigration Health Surcharge, the minimum cost to an employer for one employee’s five year visa is £7610. This represents a huge financial burden for employers and one which they have never had to factor in for EU citizens.
There are two significant omissions from the proposals – a route for lower skilled workers and one for self-employed persons.
On the topic of lower skilled workers, the Government is pre-empting concerns from employers by urging greater investment in staff retention, productivity, technology and automation to counter reliance on lower skilled workers. It is unclear how the British public benefits from greater automation of jobs and, aside from the loss of taxation from a young workforce supporting our ageing population, it seems likely that a move to automation could in fact lead to a loss of British jobs which may become obsolete.
For self-employed persons, there seems to be a failure to recognise that our current immigration system is simply not equipped to attract the talented entrepreneurs we need to build a post-Brexit economy.
The Conservative manifesto and the Government rhetoric has extolled the introduction of an Australian points based system. The primary feature of this – a route for highly skilled migrants without a job offer who meet a points test to come to the UK – is mentioned only in passing in the policy, will not be ready for roll out in January 2021 and will be subject to a cap. The policy paper references the innovator visa which replaced the entrepreneur visa in March 2019. Experience of this visa category among non-EU citizens shows it is not fit for purpose, reflected in the fact only 21 applicants were able to come to the UK as innovators between June and September 2019.
With this decision and the on-going failure of the innovator visa to provide a viable route for entrepreneurs to come to the UK, the UK really does seem to be closed to new businesses from January 2021.
The Government say they have dropped the net migration target but the tone and lack of ambition reflected in the policy announcement today confirms that reducing migration, at all costs, remains a clear priority. They seem happy to ignore the concerns of businesses, warnings regarding the economy and threats to particular sectors (agriculture and the care sector being two prime examples) in order to satisfy a perceived public demand for lower immigration. It is a time when a fresh approach (tied to a sustainable transition period) would have been a welcome approach to the challenges Brexit poses. Instead we are stuck with the same old system which time is likely to show is simply not fit to meet the demands of post-Brexit Britain.
About the author
Katie Newbury is a senior associate in the immigration team at Kingsley Napley. She has experience across a wide spectrum of UK immigration matters. Her particular expertise includes applications made under Tier 1 of the Points Based System, complex personal immigration matters, as well as the immigration implications of international surrogacy and adoption.