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An Immigration White Paper Christmas

  • United Kingdom
  • Brexit
  • Employment law
  • Global mobility and immigration

20-12-2018

The Government’s long-awaited White Paper regarding the UK’s future immigration system was published yesterday, shortly before the Parliamentary Christmas recess. In contrast to the white Christmas, these proposed immigration rules are not like the ones we used to know. The White Paper will be subject to detailed consultation throughout 2019, with implementation set to commence in 2021. A consultation period of one year is proposed during which the efficacy of the new system is assessed. 

The key recommendation of the White Paper is that the UK’s Immigration Rules will apply to EU and non-EU migrants alike, replacing the current immigration system with one applicable equally to both. This builds on the previous report of the Migration Advisory Committee, whose recommendations have been largely accepted. The White Paper envisages restricting immigration from EEA countries in 2021 and accommodating potential workers within a slightly expanded points based system.

There is some commentary regarding the transitional arrangements for EU nationals seeking to enter the UK following the date of Brexit. From 30th March 2019, EU citizens will continue to be able to enter and reside under the current, pre-exit immigration rules during an implementation period, although the latter is not fully defined within the document. Whilst that appears to provide reassurance to employers that there are no plans, at least at present, to restrict such entry to the UK prior to 31st December 2020, it would remain possible for the Government to limit the right of EU citizens to live and work in the UK if arriving after the date of Brexit if no deal were reached. The White Paper also advises that the immigration rights of Irish citizens in the UK are to be protected in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which will end some uncertainty as to whether such rights could otherwise be enforced. The same Bill is to outline the provisions by which free movement is to end.     

As recommended by the MAC Tier 2 will be the main route for EU nationals to work in the UK from January 2021. Many of the proposals in the White Paper simplify current business immigration requirements which appears positive for employers. The removal of the current Tier 2 immigration quota, an end to the resident labour market test, assistance to students seeking to remain and greater possibility to apply in-country for permission to work would all reduce the considerable regulatory burdens on businesses seeking to sponsor workers for employment and will be welcome.  Comments that the system should be “as straightforward and light touch as possible” and low-cost to employers where possible acknowledge long-standing concerns about a complex system which transfers significant risk to employers who choose to hire overseas workers. Suggestions elsewhere in the White Paper that the system should be self-funding and that increasing the level of the Immigration Skills Charge may regulate applications in future hint that the Government may seek to regulate permission to work in practice with high application fees, which will of course be less popular.    

The greatest immediate concern for employers is likely to lie in the proposals regarding lower skilled workers as Tier 2 has skills and salary criteria. For permission to sponsor most workers, a minimum salary of £30,000 is suggested; whilst there is to be further consultation about this, that has been a major source of concern for employers to date and means the alternative suggested visa for lower-skilled workers becomes very significant. The White Paper envisages that lower skilled workers should be limited to a twelve month working visa and this period would be followed by a “cooling off” period, meaning employers would effectively be limited to one year of employment per member of staff, then obliged to seek a replacement. There is a proposal that such a visa category should only exist temporarily to assist with short-term labour shortages following Brexit and would come with restrictions based on nationality, duration and, possibly, a quota.   

The report comments that the changes outlined represent the “most significant changes to the immigration system in more than 40 years”, with employers therefore requiring time to adjust.   When introducing the White Paper to the House of Commons, the Home Secretary further commented that the year-long programme of engagement would help to refine the new system, which should not be considered final at this stage. This approach does seem appropriate; we would anticipate revision of the White Paper based on the terms of the UK’s departure from the European Union and, we hope, employers’ feedback. 

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