Immigration Update: Government unveils radical shake up to the immigration rules in latest White Paper

19 December 2018

The Home Secretary, Sajid Javid, today published the White Paper, setting out the government’s plans for a new single, skills-based immigration system which marks the end of free movement.

This marks the culmination of over two years of Brexit planning, starting with the Brexit vote in June 2016. Promises to release this White Paper have come and gone throughout this period, but at long last we have the blueprint for what will be the new immigration system once the transition period comes to an end in December 2020. This will represent the biggest shake-up in immigration since the introduction of the Points Based System (PBS), in 2008. The change is precipitated by the need to bring EU nationals within the UK immigration rules. Of course 2020 is some way off and until this time there are likely to be changes, particularly with regard to the controversial proposed £30,000 salary cap.

The main provisions largely follow the recommendations of the Migration Advisory Committee, which published these in September this year.

Main provisions

The new immigration system will introduce a new route for skilled workers which will apply to all nationalities equally, and has stated that it won’t favour one nationality over another and purports to treat all nationalities equally.  Is this possible?

At present, the proposed salary cap for skilled workers is £30,000, but due to the likely impact of this on a number of sectors employing EU nationals earning significantly less than this, it will be subject to a public consultation. Skilled workers under the current Tier 2 Scheme need to be skilled to RQF 6 (degree level), however, it is proposed that this will now include those skilled to at least RQF 3 (A level standard). 

It is also proposed that the annual cap on the number of Tier 2 General Restricted work visas issued will be removed. It has remained at 20,700 for the last few years. The Tier 2 cap has been particularly controversial since this has caused significant recruitment issues for UK businesses when the cap was reached between December 2017 and July 2018, thus preventing employers from sponsoring the migrants they needed. Due to the problems of the cap being hit, Sajid Javid removed doctors and nurses from the quota (see our previous update on this here).

One of the sensible changes is that the Resident Labour Market Test (RLMT), the requirement for employers to test the market, will be removed, which many practitioners have campaigned for. This along with the removal of the Tier 2 cap will be very welcome by businesses as the requirements were very time consuming and made the recruitment process stressful and often contrived.

There will also be a new route for workers at any skill level for a temporary period. The 12-month visa will provide access to the labour market, but no access to benefits. This is an odd statement as migrant workers were never entitled to access benefits, so it is clearly a statement aimed at European nationals.  People arriving on this route will not be able to bring family members with them, will not accrue rights to settle in the UK and will have a 12-month cooling off period once their visa expires. These proposals will be subject to a consultation with businesses and other stakeholders as part of a planned extensive engagement programme.

The Youth Mobility Scheme allowing people aged 18-30 to come to the UK for two years for work or study will be expanded to encompass a UK-EU YMS scheme. This may go some way to addressing the concerns surrounding a salary cap of £30,000, if significant numbers of EU nationals are able to come to the UK to take up lower skilled work under this Scheme.

The White Paper proposals will also ensure there is no limit on the number of genuine international students who can come to the UK to study. Proposals extend the time they can stay post-study to find employment to six months for those who have completed a bachelor’s or master’s degree and 12 months for those who have completed a PhD.

The White Paper also proposes:

  • creating a single, consistent approach to criminality by aligning both EU and non-EU criminality thresholds
  • ending the use of national ID cards as a form of travel documentation for EU citizens as soon as is practicable
  • introducing an Electronic Travel Authorisation (ETA) scheme to allow vital information to be collected at an earlier stage before visitors, who do not require a visa, travel
  • allowing citizens from Australia, Canada, Japan, New Zealand, USA, Singapore and South Korea to use e-gates to pass through the border on arrival, alongside EU and UK citizens

The Immigration and Social Security Coordination (EU Withdrawal) Bill to be published on Thursday 20 December ends free movement and creates the legal framework for the future borders and immigration system. It also creates the legal framework for a future, single benefits system that will apply to both EU and non-EU nationals and maintains the Common Travel Area between the UK and Ireland.

The new immigration and borders system will be implemented in a phased approach from 2021, following an extensive 12-month programme of engagement with businesses, stakeholders and the public by the Home Office.

For Sponsors of Tier 2 migrants the White Paper is a mixed blessing. Certainly the removal of the notorious Tier 2 cap and the time consuming Resident Labour Market test will be very welcome indeed. However, for those employers who have hitherto hired a high percentage of EU nationals in the past and perhaps do not currently have a Tier 2 Sponsor Licence, the changes will be significant. At present it is relatively straightforward to hire EU nationals as no work visa requirements apply. With the proposed changes, the administrative burden and costs of having to apply for a Sponsor Licence and then comply with Tier 2 Sponsor obligations will be very onerous. The changes are likely to have a particularly significant negative impact on smaller and medium sized businesses, due to the increased costs and administrative burden associated with having to apply for work visas.

The proposed consultation on some items within the document is welcome and we certainly look forward to stakeholder engagement.

Other news – new online right to work checks

Last week the Immigration Minister Caroline Nokes announced that from 28 January 2019 employers can rely on an online Right to Work Checking Service to demonstrate compliance with illegal working legislation. This can be accessed here. Although this link currently states that employers will also be required to conduct a right to work check in person, this will not be necessary with effect from 28 January 2019, when the new online Right to Work Checking service goes live.

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