The UK went to the polls on Thursday 12 December 2019 with the Conservative Party, led by Boris Johnson, winning a majority government in Parliament by 80 seats. Brexit and immigration were at the heart of the election campaign, so we have summarised the areas that employers should keep an eye on over the coming months and years.
Whatever your viewpoint on Brexit, it is now almost inevitable that Boris Johnson's Withdrawal Agreement will soon be approved by the new government in Parliament.
The Withdrawal Agreement covers the 'divorce' terms, including agreement on citizens' rights, which will avoid a cliff-edge no-deal Brexit at stage one of the exit process. The Withdrawal Agreement is a standalone legal document, so even if there is a failure between the UK and EU to reach a trade deal by the end of 2020, the deal on citizens' rights will be legally binding.
Under that deal, there will be a transition period where freedom of movement will continue until 31 December 2020. EEA and Swiss citizens will be able to continue to move to the UK to live, work and study without a visa or immigration permission if they arrive in the UK before the end of next year, and the same will apply to British citizens moving to the EEA and Switzerland in the same time period.
Coinciding with the end of the transition period, the UK government intends to implement a new UK immigration system from January 2021 which will apply broadly the same rules to European and non-European citizens wanting to come to the UK. Although Boris Johnson has pledged not to extend the transition beyond the end of 2020, if the EU and UK do agree an extension then the start date of the UK's new immigration system will also be pushed back beyond January 2021.
EEA and Swiss nationals (and close eligible family members) who are resident in the UK by 31 December 2020 will need to apply under the EU Settlement Scheme by 30 June 2021 to protect their UK immigration status. Until the end of 2020, there are no changes to the immigration 'Right to Work' checks that employers must conduct. There is also currently no need for employers to find out whether existing EEA and Swiss citizen employees in the UK have applied under the EU Settlement Scheme. If your European colleagues in the UK would like some help to understand what they should do, there are positive steps that you can take to support your EU national workforce. Our recommendations can be found here.
The UK's future immigration system
The Conservatives campaigned heavily to introduce an 'Australian-style Points-Based System' from January 2021, and this commitment has now been confirmed in the Queen's speech on 19 December 2019. The UK already has a Points-Based System, which is made up of Tier 1 (high-value migrants), Tier 2 (high-skilled workers), Tier 4 (students), and Tier 5 (temporary workers).
Given that fact, the announcements made during the election campaign (see below) and the time and resources needed to start from scratch, we suspect that the new government will reform the existing system rather than introduce a brand new one. Much will depend on the outcome of the review currently being conducted by the Migration Advisory Committee (MAC), which is expected to report on how the UK could introduce a new Australian-style points-scoring system and on minimum salary thresholds for skilled jobs by January 2020.
In December 2018, Theresa May's government issued a White Paper on the UK's future immigration system to apply from January 2021. Lightening the burden on employers of the existing Tier 2 sponsored work visa system for high-skilled workers was a key area. Future proposals on this front included:
- Removing the Resident Labour Market Test (RLMT) advertising requirement. The RLMT is still required for some Tier 2 General recruitment now, but the government recently increased the number of roles on the Shortage Occupation List, so that employers hiring for those roles are exempt from conducting the RLMT.
- Removing the annual immigration cap on Tier 2 General visas (currently 20,700).
- Lowering the minimum Tier 2 skill level to include intermediate-level roles (but not low-skilled roles).
- Reducing the heavy administrative burden and reporting duties currently placed on employers.
Other pre-election proposals included:
- The re-introduction of the old Post-Study Work visa category (which closed in 2012) to be rebranded as the Graduate Route. This visa category will allow overseas students graduating from the summer of 2021 onwards in a UK degree course at undergraduate level or above to remain in the UK for two years to work, or search for work, in any role. At the end of the two year period, the visa holder may then be eligible to switch into a high-skilled sponsored work visa category if they have a suitable job offer.
- The expansion of the existing Tier 1 Exceptional Talent visa category for leading researchers and specialists in science, technology, engineering and mathematics (STEM), abolishing the annual cap on visas, increasing the pool of endorsing bodies, and providing fast-track visa processing.
- The introduction of a temporary 12 month visa route for low-skilled workers who are nationals of certain countries (TBC). This visa route would not lead to permanent residency.
- Adding some EU nationals to the list of nationalities eligible to apply for a Tier 5 Youth Mobility visa – a temporary visa route allowing two years of work in any role. It remains to be seen but the intended expansion of Youth Mobility visas and the introduction of a 12 month low-skilled visa may be replaced by the temporary sector-specific routes announced during the election campaign and summarised below.
The Conservatives made various announcements on immigration in its manifesto and in the lead-up to the General Election. As these were made recently and after the White Paper, to the extent there is any overlap these proposals are likely to take precedence:
Increase in Immigration Health Surcharge (IHS) fees
The IHS is paid up-front by most visa applicants and provides access to free National Health Service (NHS) healthcare in the UK during the visa period. The government plans to increase the IHS to £625 per year of the visa per applicant in most visa categories (currently £400 per year per applicant). IHS fees are paid on top of basic visa application fees and on top of the Immigration Skills Charge that employers pay for Tier 2 sponsored work visas.
Three broad visa categories
An announcement light on detail, but there will be three broad visa categories for the post-Brexit immigration system:
- 'Exceptional talent/contribution': "Highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, sponsored entrepreneurs setting up a new business or investors. They will not require a job offer and will receive fast-track entry." This is similar to the existing Tier 1 and Appendix W categories.
- 'Skilled workers': "Workers who meet the criteria of the points-based system and have a confirmed job offer." This sounds like the existing Tier 2 sponsorship system but with the government promising to speed up and simplify the current sponsorship system. There will also be a sub-category of skilled worker applicants, like those applying for the new NHS visa, that will also receive fast-track visa processing and reduced fees.
- 'Sector-specific rules-based': "Made up of specific temporary schemes such as for low-skilled labour, youth mobility or short term visits (eg touring). These will be revised on an ongoing basis based on expert advice from the MAC. These visas will be time-limited and will not provide a path to settlement." There will be no general route for low-skilled or unskilled workers but, on the advice of the MAC, the Home Office will have the ability to set up capped schemes to fill specific labour shortages, such as the Seasonal Agricultural Workers' scheme.
MAC annual report
The MAC will be required to publish an annual report via a public letter to the Home Office, advising the government on how to reduce overall immigration while meeting the needs of the UK economy and improving productivity, including sector specific advice.
From 2022/23, all visa applicants will be granted digital status rather than paper visas and/or biometric cards, and will be able to share and confirm that status with employers, landlords, banks and the NHS. As the government's aim is to reduce net migration, we don't expect much relaxation of the 'hostile environment' or sympathy for accidental overstaying, so the fairness of the system will depend largely on the reliability and quality of the technology used.
The Conservatives have been clear for many years that they intend to reduce net migration to the UK. Now that they once again have a majority government, they have the power to push through their stage one Brexit deal and reform the UK's immigration system. Their challenge will be in ensuring that the future immigration system meets the needs of the UK economy whilst upholding the UK's historic culture and reputation of diversity, inclusion and being "open for business".