Sophie Barrett-Brown on new immigration system for LexisNexis
Sophie Barrett-Brown on new immigration system for LexisNexis
21 February 2020
Sophie Barrett-Brown shares her views on the Home Office’s policy paper about the new immigration system with LexisNexis. She emphasises the close similarities to the current system and voiced the concern that businesses will face workforce shortages.
Find the full article here.
Consequences of government’s newly released immigration system
Consequences of government’s newly released immigration system
19 February 2020
In an interview with Tom Swarbrick on LBC radio, Sophie Barrett-Brown explained the changes under the new immigration system and how it may affect businesses. She expressed concerns about the accessibility of low-skilled workers and the ability of small and medium-sized companies to sponsor migrants.
New immigration system: is the UK open for business or closing its door?
New immigration system: is the UK open for business or closing its door?
20 February 2020
The Home Office recently revealed in its policy paper the main features of the new immigration system, coming into force in 2021. Overall, it contains few surprises. The government has chosen to focus on bringing net immigration down and have announced that businesses will need to adjust, investing in technology and automation. Whilst some of the Migration Advisory Committee (MAC)’s recommendations to avoid workforce shortages have been followed, they inadequately deal with the abrupt cut-off of EU low-skilled workers.
Positively, the Home Office followed most of the MAC’s recommendations to relieve the immigration system from the most pressing issues. It will lower the general minimum salary threshold from £30,000 to £25,600, bring the minimum skill level down to A-level and remove the cap on skilled workers. The salary threshold for new entrants (recent graduates and people under 26) will be set at 30% lower than the rate for experienced workers. Importantly, businesses will no longer have to conduct a resident labour market test, which was often a futile and time-consuming procedure to verify that no suitable resident worker would be able to fill the vacancy.
As predicted, the catchy points-based system (PBS) is mostly points based in name only. The new PBS will consist mostly of mandatory requirements: a migrant must have a job offer, the minimum skill level and speak English. The latter requirement, which has been presented by the Home Office and media as if a new requirement, is already an established mandatory requirement for many immigration categories, including Tier 2 (General). Additionally, migrant workers must earn at least £25,600 and this is where the limited “tradable points” character is incorporated. Those earning less, but still at least £20,480, can gather extra points to qualify if they fall under the limited exceptions of filling a shortage occupation or having a relevant PhD. Only the PhD exception is new, but also negligible, because few professionals with a PhD are likely to be paid under the minimum threshold. The Home Office states that it will continue to refine the system, considering adding further flexibility allowing additional attributes such as other qualifications, experience and age to be traded against a lower salary. This may have a more impactful but complicated effect.
The changes mentioned above do nothing to remedy the shock to the labour market once the effects of Brexit set in at the start of 2021. Sectors relying on low-skilled and low-paid labour from the EU such as retail, hospitality, manufacturing and the care sector will bear the brunt of the new system. The reduced pool of workers will bring challenges for these sectors, forcing a review of business models. Adjusting to this will be difficult and costly for business. Further, current EU staff will be able to demand higher salaries as the free flow of new EU low-skilled workers ceases as of 2021.
The policy paper further explains to businesses that they will have to prepare for the immense cut in labour forces to come and that the government has already taken measures to address this. For instance, they have committed to expanding the pilot scheme for seasonal workers in agriculture to 10,000 places and will further expand the recently launched the Global Talent Visa. However, the former promise is way below the 70,000 places the National Farmers’ Union had requested and the Global Talent Visa route only applies to a very limited group of migrants. The impact of these measures will come nowhere close to remedying the loss of access to 90,000 EU migrants per year who have kept low-skilled sectors in business. Moreover, there is no provision for self-employed workers of which many EU migrants are.
Lastly, the Home Office announced it has no intentions to remove the Immigration Skills Surcharge or the Immigration Health Surcharge, which makes migration a very costly process. The inevitable workforce shortages awaiting in 2021 make the Home Office’s promise that “the UK is open for business” ring hollow. The Home Office says that it wants to create a high wage, high-skill and high productivity economy but it remains to be seen how this will be achieved with the proposed system which will be costly for business and close the door on the EU low skilled workers who are essential for the economy.
Coronavirus guidance released - too little, too late?
Coronavirus guidance released - too little, too late?
19 February 2020
The coronavirus has significantly restricted travel and forced visa application centres to close, impeding affected individuals from complying with the condition attached to their immigration status in the UK. The Home Office issued a very brief guidance with instructions for those affected by the virus on Monday. Unfortunately, many situations are not covered, creating uncertainty and a burden on the Home Office to answer all those affected individually, via their newly created coronavirus helpline (0800 678 1767).
The guidance covered the following situations:
- Expiration of leave: Chinese nationals in the UK whose immigration status has an expiry date between 24 January and 30 March will be extended to 31 March 2020, provided they have been compliant with the condition of their leave prior to the outbreak. The extension will automatically be added to the Home Office’s systems, so there is no need to contact the coronavirus immigration helpline, unless:
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- fresh documentation (eg a letter confirming the extended status, a new biometric residence permit (BRP)) is needed;
- you are a Chinese resident, who does not have the Chinese or an EEA/Swiss nationality, and your immigration permission will expire between 24 January and 30 March. If such individuals can demonstrate that they are normally resident in China, their leave will be extended;
- you are a Chines national whose immigration status was granted by the Irish authorities (British Irish Visa Scheme) or by the Crown dependencies.
- In-country switching: In many cases, an individual wishing to switch from one immigration category to another must return to their home country to make the application. Regrettably, the Home Office has only allowed a very narrow group of professionals to switch categories whilst present in the UK, leaving many individuals in the dark about their future in the UK. Only Tier 2 (Intra Company Transfer) migrants can switch to the Tier 2 (General) category, and only if they fall under the narrow cooling-off period exemption and meet all the other Tier 2 (General) criteria.
- Visa Applications Centres (VACs) in China: The VACs remain closed indefinitely. British citizens whose passports are stuck at the VACs can apply for emergency travel documentation; non-British nationals must do the same with the relevant authorities.
- Absences and sponsor obligations:
- sponsors do not need to report student or employee absences related to the coronavirus which they have authorised;
- sponsors are not required to withdraw sponsorship if there are exceptional circumstances (such as the coronavirus) when a student is unable to attend class for over 60 days or an employee is absent without pay for four weeks or more.
Despite a much broader range of issues having been raised with the Home Office related to the coronavirus, the Home Office has chosen to limit its coronavirus policy to the above situations. For instance, an exception to the 28-day maximum delay to the work start date is not explicitly addressed. However, many Chinese nationals are held in quarantine or ill and are thus unable to make the deadline. Similarly, the Home Office does not provide a solution for the expiration of temporary travel vignettes, which allow travel to the UK until the applicant’s BRP is ready. Many applicants’ passports are returned with significant delays, often only arriving after the expiration date of the travel vignette that grants them entry to the UK.
Aside from creating uncertainty for those affected by the virus, it also burdens the Home Office with an elevated number of individual queries which could have been pre-empted by issuing a more comprehensive guidance. We hope that the Home Office will soon release more detailed instructions covering a wider range of situations to enable further clarity to be provided.
Challenges under the new immigration system
Challenges under the new immigration system
19 February 2020
Commenting to the Recruiter magazine on the consequences for hiring new staff, Natasha Chell highlights the likely challenges to find low-skilled workers.
“However, sectors relying on low-skilled and low-paid labour from the EU – such as retail, hospitality, manufacturing and the care sector – will bear the brunt of the new system. The pool of workers will reduce, bringing challenges for these sectors forcing a review of business models.
Read the full article here.
Challenges facing SMEs under new immigration system
Challenges facing SMEs under new immigration system
19 February 2020
In an interview with Channel 5 Zeena Luchowa discussed the challenges that the new immigration system will have on small and medium-sized businesses, which will need to get to grips with the sponsor licence regime to employ overseas nationals.
Watch the full interview here (Zeena appears from 1.50).
Brexit immigration procedures restricting travel
Brexit immigration procedures restricting travel
10 February 2020
To manage the immense administrative burden of processing millions of applications from EU citizens and their family members to obtain proof of their right to reside in a limited timeframe, the Home Office introduced a much more efficient system than for any other immigration application to date. Yet, for no apparent reason, it only allows applicants to use its technologically advanced system in the initial application phase. As a result, when applicants renew their passports which are linked to their online immigration status, they are subjected to travel restrictions because of the need to send their new passports to the Home Office to be verified.
In line with the Government’s promise that those EU migrants and certain family members already present in the UK will be able to stay, the Home Office made extraordinary efforts to design an efficient, user-friendly, technological solution. They can apply to remain in the UK under the EU Settlement Scheme (EUSS) by scanning their passport via an app and completing an application online, instead of sending their original passport to the Home Office. This modern system significantly simplifies the process which benefits both the Home Office and applicants, reducing the burden and resources on the Home Office to physically verify the passport while also allowing applicants to travel while the application is pending.
Surprisingly, applicants who renew their passports after being granted permission are required to send their original passports to the Home Office to be verified and so that their permission is linked to that new passport. Whilst the Home Office states that the procedure takes 10 postal days, some applicants have reported delays of weeks. Busy travellers simply cannot afford to be without their passport for such a lengthy period.
We would have hoped that when designing the system, the Home Office would have considered the impact of not having the function to enable applicants to scan their renewed passports via the app. Many applicants are unaware of this at the time they apply whereas some are strategically deciding to delay submission of their application until they have renewed their passports. Despite the Home Office encouraging applicants to apply as soon as possible to avoid a bottle neck of applications at the end of the transitional period, the inability to scan renewed passports via the app is indirectly contributing to this.
In the long term, it means that everyone with status under the EUSS (unless they become British) will have to send their passport to the Home Office every five or ten years, depending on the passport expiry. As millions of Europeans and their family members applied under the scheme, we wait eagerly for the Home Office to upgrade the current EUSS app to enable applicants to scan their new passports to avoid travel restrictions and further administrative burden on the already stretched Home Office resources.
Immigration for the talented: the ‘Global Talent’ category
Immigration for the talented: the ‘Global Talent’ category
5 February 2020
The Global Talent category is aimed at attracting “the brightest and the best” and is part of the Prime Minister’s vision to “cement UK as a science superpower”. It is defined in the Immigration Rules as being the category for “talented and promising individuals in the fields of science, engineering, medicine, humanities, digital technology and arts and culture…wishing to work in the UK” . Those that are familiar with the current Tier 1 (Exceptional Talent) category will note the similarities with this existing route and whilst it indeed creates more beneficial conditions for ’globally talented’ professionals – especially in the fields of science, engineering, humanities and medicine, it does also appear in many aspects to have been a re-branding exercise by the government.
What is the impact of this new category?
The Home Office removed the cap on applications under the “new” category, in a largely symbolic move, as the cap under the Tier 1 (Exceptional Talent) route has never been hit and would unlikely be hit due to the central role of “endorsing bodies”. Under this category (and similarly under the Tier 1 (Exceptional Talent) category), applicants must first be endorsed by a third-party specialised body and can only apply once this endorsement has been secured. Having limited capacity and being highly selective, it is these bodies who are ultimately deciding the number of applicants, not the formal cap.
The principal change appears to be for those individuals who are applying within in the fields of science, engineering, humanities and medicine. As announced earlier in January 2020 (and written about in one of our previous blogs) an additional accelerated route to obtaining an endorsement has been introduced for individuals hosted or employed in a UKRI-approved UK research organisation providing critical contributions to work supported by a substantial research grant or award from an endorsed funder. The current Tier 1 (Exceptional talent) category already foresaw two “fast-track” routes, providing automatic endorsement by a body if they had either been offered an approved research fellowship or award or if they were appointed to an eligible senior academic or research position at an approved UK Higher Education Institution or research institute.
Faster routes to settlement are also being introduced, again mostly benefitting those applicants who have been endorsed within the fields of science, engineering, humanities and medicine. Individuals endorsed within these specialisms can apply for indefinite leave to remain in the UK (ILR) after three years (whereas previously only those who had met the criteria to be endorsed as having exceptional talent rather than exceptional promise could apply for ILR after three years). On the other hand, those previously given an endorsement under the exceptional promise criteria for the Arts Council or Tech nation will still need to wait for five years to apply.
Notably, for those endorsed within the fields of science engineering, humanities and medicine their absences overseas will not be counted towards the ILR absence limit; provided that the purpose of the absence is linked to their endorsement (for example an absence to undertake research in their field).
Prior to the launching of the “Global Talent Visa” time could not be amalgamated between the categories within Part 6A of the Immigration Rules (the points-based system) and the categories in Appendix W to reach the required period of residence for ILR. With the Global Talent category, the Home Office broke this pattern, hopefully indicating that a more flexible approach will be taken in the future regarding the ability to switch between categories and amalgamate time for ILR. Now time spent as a Tier 1 migrant (excluding Tier 1 (Graduate Entrepreneur) migrants or Tier 1 (Post-Study Work) migrants) or as a Tier 2 (General) migrant or in the Innovator category will count towards ILR under the Global Talent Visa.
Interestingly, the Home Office has lifted the category out of the current points-based system and brought it under Appendix W, amongst two other recently created categories (Start Up and Innovator) which do not work on a points basis. As this category for highly skilled professionals was the most suitable one to be incorporated in a system awarding points for skills, instead of a job offer-based system, it becomes highly doubtful that the government is serious about transforming the UK immigration system in an Australian-style points-based system.
The Statement of Changes is undoubtedly good news for academics and an elite group of highly exceptional people (especially those within the fields of science, engineering, humanities and medicine). However, the government will need to do a lot more than the current re-branding of the Tier 1 (Exceptional Talent) category if it wishes to remedy the expected workforce shortages post-Brexit.
eGates – what employers need to know
eGates – what employers need to know
4 February 2020
In an effort to digitalise border control, the UK has introduced over 250 eGates at 15 air and rail ports designed to facilitate fast, smooth and secure entry to the UK. The Home Office estimates that over 1 million people have used the eGates since July 2019 so they are proving popular but travellers and sponsoring employers need to be aware of the pitfalls when using this automated system.
In a short video Natasha Chell provides employers with the key points they need to know to ensure they are compliant with Tier 2 visa requirements: click here to watch.
MAC Report: key takeaways
MAC Report: key takeaways
30 January 2020
The Migration Advisory Committee (MAC) yesterday published its 272-page report and recommendations on the UK’s future immigration system. We highlight some of the key proposals and comment on how they may affect UK businesses and their migrant workforce.
Despite the Government’s much-trailed plans to replace the current system with an ‘Australian-style’ Points-Based System (PBS), unsurprisingly the MAC has recommended retaining much of the existing system, in particular Tier 2 (for employer-sponsored workers), with certain modifications.
Tier 2 (General) – sponsored workers
The MAC recommends:
- keeping the Tier 2 (General) category for skilled workers with a job offer, requiring a combination of skills and a minimum salary threshold.
- retaining the general salary threshold (despite calls from businesses to abolish it entirely) but reducing it to £25,600, currently, £30,000 for ‘experienced workers’, and to £17,920, currently, £20,800 for ‘new entrants’. The definition of new entrants would also be expanded, to include those who are working towards recognised professional qualifications and those who are moving directly into postdoctoral positions.
- continuing not to permit part-time workers to meet the salary threshold on a pro-rata basis but introducing an exception for existing leave holders who wish to switch to part-time when they become parents.
- rejecting the inclusion of additional forms of compensation, such as pensions or equity, to meet the salary threshold.
We welcome the MAC’s recommendations to lower the salary threshold, despite hoping to have seen even stronger measures. For employers outside the London area, it is regrettable that the MAC has again recommended against providing for lower salary levels regionally. However, it has recommended a pilot for particularly remote areas. The MAC recommendations are also based on the understanding that the Government will abolish the Tier 2 (General) cap and the Resident Labour Market Test, in accordance with its previous recommendations in 2018.
Tier 1 (Exceptional Talent) – a new points-based approach?
The MAC identified that a genuine ‘PBS’ approach could however usefully be applied to a category for highly skilled workers without a job offer (as in Australia). It considers the current Tier 1 (Exceptional Talent) category to be too restrictive and recommends expanding it, with points being awarded for characteristics such as qualifications (involving a more rigorous assessment of quality not simply level), English language, age, priority sectors. The MAC proposes a cap on numbers and operating the route on an “Expression of Interest” basis, creating a pool of migrants – arguably the least successful features of the Australian system creating both substantial delays and lack of certainty, because an applicant’s success depends not only on objective criteria but the relative strength of others in the pool.
It now remains to be seen how the UK Government will respond and which of the MAC’s recommendations it will choose to follow. To keep up to date on the latest UK and US immigration law developments please contact your assigned lawyer or email enquiries@lauradevine.com.