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Immigration: the disap-points based system

  • United Kingdom
  • Employment law
  • Global mobility and immigration

29-01-2020

Two important announcements this week will be relevant to the UK’s immigration requirements for several years. Brexit is, of course, scheduled for 11PM on 31st January. In addition, a report published yesterday provides a blueprint for the future immigration system Those who need to manage these processes should understand what the new requirements will be in advance of them taking effect in 2021.

The Migration Advisory Committee (“MAC”), a body of economists which advises the Government about the implications of immigration policy, has sought information on two issues. Firstly, to consider salary thresholds for the future immigration system and secondly to assess how an “Australian Points Based System” might operate in the UK. The recommendations of most relevance to employers from the MAC are those regarding the proposed changes to Tier 2 system after Brexit; Tier 2 is the route by which non-EU nationals currently work in the UK.

The MAC has recommended that the existing framework for Tier 2 (General) is retained for EU and non-EU workers in the UK and concluded that there isn’t a strong case for adding an Australian style tradeable points route to this. Suggested features of a new Tier 2 system include:

  • a streamlined process which abolishes the current resident labour market test and monthly quota and expands the list of eligible occupations to those at RQF Level 3 and above;
  • the minimum salary required should be around £25,600 with allowances, equity and employer pension contributions not included;
  • new entrants to an occupation would require a minimum salary of £17,920 and allowed to be paid at this level for up to 5 years;
  • the Government should consider flexibility for visa holders switching to part-time work and a separate pilot visa for areas of the UK which have a problem in retaining workers although the MAC falls short or making specific recommendations here..

Modification of the current Tier 1 (Exceptional Talent) by making it a points based system is recommended. The proposed criteria seem similar to those which existed for Tier 1 General, which closed to new applicants in 2011, but with greater scrutiny on work activity in the UK which was absent in the old route and was the catalyst for its closure.

We have seen similar changes proposed to Tier 2 in previous assessments and they would most certainly represent a liberalisation of the current criteria. Reductions in the salary thresholds will be supported by employers, although it is notable that the system relies upon the allocation of work visas based solely upon salary and the nominal skill level required for the role. Employers will be disappointed that flexible working is not addressed in more detail here, since current rules are restrictive and make it difficult for sponsorship to encompass less than full time employment.

The MAC has not responded to challenges from employers seeking to recruit in lower salary roles and geographies, with the suggestion that a pilot visa route be introduced for some areas of the UK. Our feedback suggests that employers in these areas would have found a lower salary thresholds a much more effective method to meet their resourcing and are sure to be filled with alarm at the absence of a credible solution in this area. How workers will qualify for visas in roles classified as requiring skill below RQF Level 3 is not considered here and yet, for industries which rely on large numbers of EEA employees with such skill levels, this will be critical. Tier 2 sponsorship comes at a cost and those who have employed EEA workers relying on free movement provisions in the past may need to pay substantial immigration application fees to use this system from 2021.

Reports from the Migration Advisory Committee are advisory only. These are usually accepted by the Government with few amendments but, on this occasion, there seems to be a real difference here between the recommendation (a liberalised version of the current immigration system) and the stated political intention of the review (the introduction of an Australian-style points based system with stricter controls). It may be therefore be that the immigration system ultimately introduced in 2021 is different to this, with greater emphasis on skills, tradeable points and flexibility.

Employers should continue to monitor the development of the post-Brexit immigration system carefully.