UK government publishes long awaited immigration white paper

Although the paper sets out the government’s current thinking, it is not the final word on the shape the post-Brexit immigration system will take. The government has confirmed it is planning to undertake a year of further engagement with stakeholders before laying the Immigration Rules for the reformed system.

The government anticipates the reforms included in the post-Brexit system will result in an 80 per cent drop in long-term workers from the EEA/Switzerland.

The white paper adopts many of the recommendations set out in the Migration Advisory Committee (MAC) report on EEA migration in the UK, which was published in September. Contrary to the views and needs of many key industries in the UK, the government has shown in the white paper that it is keen to limit the access of low skilled workers to the UK and create a level playing field between EU and non-EU workers when it comes to access to visas to work in the UK.

Key policy positions outlined in the paper include:

• Removing the cap on Tier 2 (General) restricted certificates of sponsorship, which is currently set at 20,700 per year
• Retaining a general salary threshold for Tier 2 (General) migrants at £30,000 (or £20,800 for new entrants), although consultation on this aspect of the new system will be undertaken
• Reducing the minimum skills threshold for Tier 2 migrants to level 3 of the Revised Qualifications Framework (A level or equivalent)
• Reviewing the general shortage occupation list (SOL) and the SOL for Scotland, as well as producing a SOL for Northern Ireland and considering whether there should also be a separate list for Wales
• Removing the requirement for a resident labour market test to be carried out for those Tier 2 (General) applications to which it currently applies
• Using data sharing between the Home Office, HMRC and DWP as a means of minimising the reporting requirements for employer sponsors, and seeking to ensure the administrative burdens, up-front costs and processing times are also minimised – a target has been set for processing most work visas in two to three weeks
• Allowing citizens of ‘low-risk’ countries to apply for a work visa from within the UK
• Expanding commitments made in accordance with the General Agreement on Trade in Services (GATS) Mode 4 (which relates to supply of services between member countries) on a reciprocal basis with countries the UK makes trade deals with – these may encompass provisions for self-employed professionals, contractual service suppliers, intra-company transferees and business visitors
• Not introducing a new low-skilled immigration route, but implementing transitional arrangements to allow sectors traditionally reliant on low-skilled migrant labour (such as construction and social care) to access unsponsored temporary short-term workers who are allowed to come to the UK without dependants for up to 12 months, with a 12 months cooling off period – the length of permission and cooling off aspects of this policy will be subject to consultation and the route will be fully reviewed in 2025
• Expanding youth mobility arrangements
• Allowing students who complete a PhD to have a period of 12 months post-study leave
• Allowing Masters and Bachelor degree students at institutions with degree awarding powers to have a period of six months post-study leave
• Allowing students studying at or above bachelor level to switch into Tier 2 up to three months before their UK course ends, and to apply from outside the UK for up to two years after graduating
• Retaining the genuine student, English-language, maintenance, academic track record and academic progress requirements for students
• Retaining the current arrangements for family migration and settlement, aside from updating the Life in the UK Test and increasing the level of English-language proficiency required for citizenship
• Introducing revised border security measures including an Electronic Travel Authorisation to pre-assess visitors prior to arrival
• Keeping the length of visitor permission at six months and allowing EEA/Swiss citizens to use e-gates on entry to the UK, the latter being subject to EEA countries and Switzerland agreeing reciprocal arrangements
• Continuing ‘compliant environment’ measures including right to work checks, right to rent checks, bank account closures and restrictions on access to NHS services and benefits
• Seeking to ensure that the immigration system (including asylum and enforcement is funded through fees and charges – the government is looking to increase funding through activities such as increasing level of the immigration health surcharge, reviewing the immigration skills charge and looking at additional or alternative revenue sources

Like the MAC report, the white paper leaves open the possibility that there may be different treatment of citizens of particular nationalities under the new system, for example where this is negotiated as part of future trade agreements, including the agreement reached with the EU, or on risk grounds.

On the whole however, the government has missed a once-in-a-generation opportunity to design a new modern immigration system to cater for EU nationals which centres on business needs whilst protecting resident workers. Instead, the approach is cautious, with the government opting to stick with the current ‘work permit’ system known as Tier 2 as the centrepiece of migration for work, simply extending it to incorporate EU workers.

Some of the proposed changes to Tier 2 are positive, particularly the scrapping of the migrant cap which serves no real purpose in managing the numbers of workers in the UK and only frustrates businesses who wish to use this system and stopping the resident labour market test as a way of protecting resident workers. The government acknowledges that skill and salary limits do that job much better. These changes will certainly make the Tier 2 system more user-friendly and more in line with the modern working world.

The MAC is currently running a consultation on which occupations should be included in the shortage occupation list, with views sought from stakeholders up until 6 January 2019. The MAC’s review of responses will cover occupations across all skill levels, and it is likely that the post-Brexit immigration system will be adjusted in order to ensure that employers are able to fill vacancies in occupations that are in genuine shortage. Employer groups will no doubt be putting their cases to the government for why provisions ought to be made for certain occupations and sectors.

However, if the minimum income threshold is kept at £30,000 for the visa route and no other adjustments are made, this will mean that only higher and medium skilled workers will have access to jobs. As the new rules will be in place from 2021, this leaves industries reliant on low-skilled workers very little time to create new strategies to recruit resident workers. The proposal to introduce a short term visa for low skilled workers as a transitional arrangement is a pragmatic development and a departure from the conclusions on the MAC report. But it will be highly restrictive, only valid for one year and with a cooling offer period preventing someone from simply reapplying for a new one. This will offer little comfort to employers who will have to constantly recruit and train new workers to fill vacancies affecting the continuity of the make-up of their teams and creating high levels of turnover of staff.

After the planned implementation period ends, a lot more businesses and employers will need to become users of the Tier 2 sponsor licence system. The system is costly, with fees for obtaining a sponsor licence, a levy on sponsored workers, an immigration health surcharge and application fees for visas. It takes time to secure a visa and creates an administrative burden for an employer as they have to carry out a number of reporting duties.

The white paper indicates that improvements to the system will be made to make it cheaper and more light-touch. However, this will increase cost and bureaucracy for businesses and result in more work for the Home Office who have to check that employers comply with the system. Ironically, the concept of freedom of movement of workers was specifically designed to avoid these issues and the simplicity it provides employers is likely to be sorely missed once the new system is in place.