Brexit and the points based immigration system

The UK’s potential withdrawal from the EU has placed our immigration systems under scrutiny. This article reviews the nature of our current system. We highlight aspects which could be improved and aspects which will have to change if EU nationals will be subject to the same Immigration Rules as non-EU nationals.

The House of Commons Library has also recently published a useful article on the UK points-based system which provides more detailed information (‘The UK’s points-based system for immigration’, House of Commons Library Briefing Paper number 7662, Melanie Gower, 18 July 2016).

Hybrid points-based and employer-driven immigration systems

Countries employ different models of immigration systems to exercise immigration control. Points-based systems select migrants based on their qualifications, language proficiency, experience and occupation. The migrant can then enter the country without having a job. In contrast, in employer-driven systems, employers simply select workers who are then granted a visa for carrying out a particular job.

Hybrid models combine these two approaches. This includes the job-search visa, where the Government grants migrants who fulfil certain criteria a period of time in which to find a job – this model is used in the Netherlands and Austria. Other points-based and employer-driven hybrids require a migrant to both pass a points test and secure a job to be eligible. Austria’s and Japan’s immigration systems both include this type of visa route. Some countries allow employer selection initially, but then require the migrant to pass a points test to progress towards permanent residence.

What is the UK system?

An employer sponsorship stage and a points-based visa stage comprise the application process for Tier 2, the principal visa category for skilled workers in the UK. However, the UK points-based system is in fact a combination of an employer-driven system and a rigid, criteria-based system.

Although migrants are awarded points for fulfilling various criteria, they must be awarded points against every criterion to be eligible for a visa. Points awarded in relation to one criterion cannot make up a shortfall of points for another criterion. Only the sponsorship-stage assessment of a new hire from overseas earning less than £155,300 a year is truly points-based, and such migrants still have to fulfil the more rigid criteria-based assessment at the visa stage of the application.

There have been calls for an Australian-style points system. Australian points-based visas are awarded on the basis of points earned for being relatively young, English proficiency, and intending to live in remote regions of Australia. Unlike the UK system, points are not required in relation to each criterion in order to be eligible. However, Australia also relies heavily on skilled workers immigrating under non-points-based visa routes, which have apparently been the subject of abuse and allow for exploitation of workers. Australia is currently conducting a ‘skilled migration review’ and might replace its points-based system with a criteria system. This new, holistic system might address Australia’s skilled migrant labour needs more efficiently.

What might change in the UK system?

Changes to the UK system will be required if EU nationals, whose rights of residence in the UK currently derive from EEA regulations, lose their right to remain after Brexit. These individuals will then need to apply under the Immigration Rules for entry clearance and leave to remain in the UK.

A move to a points-based system like Australia’s could afford the UK the flexibility it will need to accommodate the anticipated surge in applications from EU nationals. However, a UK points-based system might not provide enough migrants to fill UK labour needs, and the UK could face the same problems that Australia has encountered.

There are various options for dealing with this issue. The existing UK points-based system criteria for both EU and non-EU nationals could be relaxed. In respect of the Tier 2 sponsored skilled worker route, the Government could raise or eliminate the limit on the number of new hires from overseas earning less than £155,300. Minimum salary levels might be revised. Sponsorship and compliance requirements could be relaxed. Tier 2 visas could be less strictly linked to a particular role with a particular employer. The Resident Labour Market Test, which dictates vacancy advertising requirements for employers seeking to sponsor skilled workers, could be less prescriptive.

The UK could also take the opportunity to address more general issues with the current system. The degree of complexity will certainly have to be addressed - the processing of applications would grind to a halt if the Government tried to handle the additional demand posed by EU nationals making applications under the Immigration Rules without simplifying those rules considerably. Published guidance will also have to be simplified. A relatively straightforward way of relieving the administrative burden for the Home Office would be to relax and reduce evidential requirements, which are currently extremely prescriptive.

The Government might also take the opportunity to address the disconnect between current rules and policies and the needs of certain industries, including creative industries, ethnic cuisine, and modelling and other talent industries.

The Government should refine the ‘genuineness tests’ it has introduced into various points-based system categories to address the perceived abuse of the relevant visa categories. The Government uses genuineness tests to assess applicants’ credibility. The Government should refer to existing practices amongst employers, investors and venture capitalists and reformulate the genuine tests. Initially the Government scrutinised applications from entrepreneur migrants in this way, to check that they had a viable business plan and the skills and experience to execute it. The Government has increasingly introduced genuineness tests into its assessments of other types of immigration applications. Recently, it has been annoying employers by declaring recruitment processes ingenuine and dictating the selection of job candidates who do not meet employers’ requirements.

The current immigration system has developed into precarious layers of criteria, conditions and requirements. Whatever the other potential effects of a Brexit may be, it could provide a great opportunity for overall reform of the UK’s immigration system.