After months of uncertainty we finally have a picture emerging of what the post-Brexit immigration system will look like. We have known for some time that after we leave the EU on 29 March 2019, the plan is to enter a transition period until 31 December 2020 which will see EU nationals and their family members being able to live and work in the UK largely on the same basis as they do now. But what lies beyond that was until recently a matter of conjecture.
Some progress has now been made. A few weeks ago the Migration Advisory Committee published its long awaited report into the impact of EU workers on the UK economy which made a series of recommendations for shaping the new system. The speeches made by Theresa May and Home Secretary Sajid Javid at the Conservative party conference over the last few days have given strong indications of how closely they intend to follow the MAC report and what the soon to be published immigration White Paper might contain.
Plenty of uncertainty remains. The Brexit negotiations may yet result in significant concessions to the European Union on immigration rights for its citizens, and even the transition period from March to 2019 requires EU agreement. Six months is also a long time in politics — a Jeremy Corbyn or Boris Johnson immigration policy would be different again.
So what conclusions can we (possibly) draw about what the post-Brexit (if it happens) immigration system will look like (or not)?
1) EU free movement will come to an end
This will not come as too much of a shock as we have been forewarned of this for some time. Theresa May has repeatedly said since the referendum that the Brexit that she wants will mean the end to free movement of people under EU law. The MAC has agreed, as it cannot be guaranteed that free movement benefits UK residents. Both Theresa May and Sajid Javid have maintained this line in their conference speeches so a system of immigration controls and constraints for EU citizens is highly likely post 2020.
2) There will be a level playing field between EU and non-EU workers
The concept of a level playing field between EU and non-EU workers first emerged in early 2018 and was discussed in this earlier post. This means that EU nationals will no longer be able to start work in the UK simply by presenting their passport and will have to negotiate a visa system to find employment.
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The MAC concluded that there was no economic justification for EU nationals to have preferential access work in the UK and Theresa May has confirmed that she intends to create one unified system for all migrants wanting to work in the UK.Post 2020, workers from France and Germany will be on an equal footing to those seeking work from India, Australia or the USA for instance (except if their government have negotiated a beneficial trade deal – for more on this see point 10 below).
3) Highly skilled workers will be prioritised
So what will this one “unified” system look like? Well, there has been much talk at the Conservative party conference of the new system being “skills based”. Simply put, that means that access to the UK jobs market will only be granted if an EU national can demonstrate they are taking up a highly skilled role.
In essence we are talking about a work permit system and the modern iteration of this, Tier 2 of the Points Based System.
4) The new immigration system is likely to be just an amended version of our current Immigration Rules
The government has a once-in-a-generation opportunity to take a look at the Points Based System, rip it up and start again. Unfortunately it looks like the government will bottle it, as indications are that will follow the lack of ambition shown by the MAC and simply tinker with the the current rules for Tier 2 visas. The idea is to make access easier for employers and workers to incorporate the surge of new users of the system post 2020.
There are hints that Mr Javid would like to be braver. He said at conference that Brexit will afford the opportunity to “design the immigration system almost from scratch”. Should his apparent bid for the leadership be successful, a bolder post-Brexit approach could become more likely.
5) The Tier 2 cap is likely to be scrapped
The MAC wants to get rid of the annual quota on Tier 2 visas and Mr Javid appears to agree. The government seems finally to be persuaded that it has no real place in today’s modern immigration system and that the flow of foreign workers can best be controlled by salary and skill levels. Thankfully, it would appear that the cap’s days are numbered.
6) Access to Tier 2 will be widened for employers and employees
If the MAC’s recommendations are followed to the letter then we are likely to see substantial changes to Tier 2. This should open it up to medium skilled workers and minimise the administrative burden for employers wanting to use the system.
This will be achieved by dropping the minimum skill level for Tier 2 back down from NQF level 6 (degree level) to NQF level 3 (GCSE level). The committee also suggested scrapping the dreaded Resident Labour Market Test, as salary thresholds are a better way to prevent employers undercutting local workers. Sensible ideas but it remains to be seen how the Tier 2 and sponsorship systems will be able to cope with the increased numbers of workers and employers needing to use them.
7) No separate visa route for low skilled work
The most controversial bit of news is that there will not be general provision for low skilled workers in the new immigration system. The MAC rejected the idea, saying that it did not see how it benefited the UK economy.
Theresa May has confirmed that this approach. She has indicated that there will be no special exemptions for low skilled work other than for seasonal agricultural workers, for which a pilot is currently underway. The Prime Minister recognises that some industries may be adversely impacted but has appeared willing to follow the MAC’s line that this offers an incentive to train up settled workers.
With the outcry from industries who rely on low skilled labour growing, it is likely that some concessions may be made, particularly for the social care sector, so this is very much still up in the air.
8) The Tier 5 Youth Mobility Scheme will be extended
Even if a low skilled worker visa does eventually emerge, we are likely to see a rise in the profile of the Tier 5 Youth Mobility visa. Although not originally designed to supply employers with migrant workers, this visa route has been named-dropped repeatedly by government and the MAC as the solution for employers who rely on low skilled workers.
This visa allows people aged under 31 from a select group of countries to come to the UK for two years to work freely for any employer they choose. The likely plan is that this system will be extended to European countries in the hope that it will scoop up the low skilled workers who are unable to use Tier 2.
For this to work, some changes to the visa route would be necessary. The maintenance requirement for Tier 5 YMS which requires an applicant to have £1,890 in savings should be lowered as it is likely to deter younger applicants who can simply get bar jobs in France without needing any money at all. A worker can only ever have one Tier 5 YMS visa. which will be of no use to industries such as retail and hospitality which rely on seasonal workers who may come to the UK for busy periods and return home in between stints.
9) UK nationals will have to apply online before visiting the continent
Theresa May has acknowledged that introducing a system of immigration controls and constraints on EU workers will make it harder for British nationals to visit the continent. It is likely to mean that British nationals will need to apply for US-style travel authorisation before they travel, as will EU nationals who visit the UK. This is more than conjecture: the European Travel Information and Authorisation System (ETIAS) passed into law last month and will be rolled out in the coming years.
This means applying online for authorisation to enter the EU, even if a full visa is not necessary. A fee will need to paid and criminal records will be checked. This should serve as a useful reminder that Brexit is not a one way process: whatever rules we apply to EU nationals will be dished out to British travellers as well.
10) All of the above may be ditched depending on the trade deal offered
It bears repeating that things are still in flux. The window has been left open for “mobility concessions” to be made as part of the final Brexit deal, meaning that the ideas discussed above may be softened depending on the future trade deal struck with the EU. Looking further ahead, the same goes for future trade deals with non-EU countries after Brexit. This could lead to an immigration lawyer’s worst nightmare: a system which has different rules depending on the country where the migrant is from. The risk is that we end up with an immigration system that is in reality a complex and unworkable mess.
The immigration white paper is due shortly and an immigration bill will follow in the new year. We won’t have to wait too long to find out whether these conclusions are close to the mark. But with a new Conservative party leader, another general election or even a second referendum all possible in the near future, nothing is set in stone. Progress has been made but we are still a long way from being able to give certainty to businesses and workers about what the future may hold post-2020.