What the Conservative win means for business immigration

Samar Shams
16 December 2019

16 December 2019

With the win of a majority in Parliament on 12 December 2019, the Conservative party has also won the prize of implementing their ideas for an ‘overhaul’ of the UK’s immigration system. We can be fairly certain of Brexit occurring on 31 January 2020. What immigration policies can businesses and EU nationals now expect?

The Conservatives’ stated objectives are to create a new system to attract the best and brightest, establish immigration controls and to treat EU and non-EU citizens alike. They propose to introduce an Australian-style points-based system to achieve these goals. They would like to reduce migration to the UK overall and to reduce low-skilled migration in particular.


An Australian-style Points-Based System

The Conservative party’s plans for immigration are centred on a Points-Based System. The basic tenets are that most visa applicants will need a job offer, English skills, qualifications and a clear criminal record.

We have relatively little information on how the proposed Points-Based System will work in practice. The Conservative party has consistently referred to Australia’s Points-Based System as a model. The Points-Based System in Australia is not an overarching immigration system, but particular Australian visas are assessed on the basis of points for various characteristics. Australia’s Skilled Independent visa is an example. Prospective Skilled Independent visa applicants first submit an expression of interest online. Prospective applicants with the most points are invited to apply for visas.

The Government has commissioned a report from the Migration Advisory Committee (MAC) on how to design the Points-Based System. The MAC will suggest how to award points for qualifications, English language, work experience and willingness to work in shortage occupations. The MAC will also report on salary thresholds. The report is due by January 2020.

The Government relies heavily on the MAC’s recommendations when drafting new Immigration Rules, so the January report will give us a good indication of what the UK’s new Points-Based System will look like. The Government will also draw on knowledge it hopes to gain from a formal exchange programme with Canadian and Australian government officials to design the UK’s Points-Based System. The proposed exchange programme is highlighted in a press release emailed to journalists in the run-up to the General Election 2019 (‘General Election press release’).

For confirmation of which recommendations will be adopted and for details of how the new system will work in practice, we will have to wait not only for new Immigration Rules to be laid before Parliament, but also for guidance documents. The Home Office tends to publish the relevant guidance only on the day new Rules become effective.


Sponsored skilled worker visas

In the General Election press release, the Conservative Government set out some changes to visas for skilled workers with a job offer from a sponsor: Sponsored skilled workers’ visas will be assessed on a points basis; the Government has promised to streamline sponsorship processes; and they will carve out bespoke processes for visas for NHS workers and other sectors with labour shortages.

For an idea of what the Government means by streamlining sponsorship processes, we can look to the Immigration White Paper published in December 2018 (‘White Paper’). In that White Paper, the previous Conservative Government suggested that it might abolish the cap on certain skilled worker visas. The cap of 20,700 visas means that sponsors have to submit a request to the Home Office for an allocation of one of those visa places, before sponsoring certain skilled migrants. Waiting for approval can add several weeks to the sponsorship process.

The White Paper also suggested that the resident labour market test might not apply to the majority of sponsored skilled worker visas in future. The resident labour market test requires sponsors to demonstrate that no suitable settled workers in the UK are available to fill the role for which they intend to sponsor someone. It usually involves advertising the role for at least 28 days. The documentation that sponsors are required to keep of their advertising efforts is extremely specific. Sponsors who genuinely advertise for a role and identify a migrant as the only suitable candidate will always have to readvertise according to the Home Office requirements if they did not take them into account to begin with. So the resident labour market test too can add weeks to the sponsorship process.

The Government aims to achieve further streamlining through introduction of its plans for digital immigration status, discussed below.
The historic continuity of change in the sponsorship system is likely to continue. The MAC will advise annually on caps and incentives to be introduced, based on excesses or shortages.
In the General Election press release the Government commits to reduced fees and fast-track entry for an NHS visa for doctors, nurses and allied health professionals with a job offer from NHS. It is possible that the MAC’s future recommendations for incentives based on shortages will include reduced fees and fast-track entry for other types of work visas.

There is otherwise very little good news regarding fees. The Conservatives announced a plan to raise the Immigration Health Surcharge to £625 per year for every migrant, though the figure does not reflect the real average costs to the NHS. This would increase costs of sponsoring skilled workers for many businesses that cover the costs of the IHS as part of the application processes.


‘Exceptional talent/contribution’ visas

Few substantive changes have been proposed regarding the visa routes for what the Home Office currently describes as high-value migrants. As now, highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, and sponsored entrepreneurs setting up a new business or investors will not require a job offer. As now, there is no substantive cap proposed for these visa types, their dependants can work and there are accelerated routes to settlement after three years.

The General Election press release announces the expansion of endorsing bodies, but it is likely that further endorsing bodies would have been approved in any case. The innovator visa route introduced a requirement for experienced entrepreneurs to be endorsed by an approved endorsing body to be eligible for a visa to set up in business in the UK. The innovator visa replaced the entrepreneur visa on 29 March 2019 and the Home Office received only 14 applications for this visa type in the first 6 month of its operation, indicating that expansion of endorsing bodies is a must if this new visa for entrepreneurs is to be a substantive route.

Announcements about exceptional talent/contribution visas that do represent true changes are that these visas will be assessed on a points basis and that criteria for ‘automatic endorsement’ will be introduced. The Government has also stated that fast-track entry will be available for these visa types.


Sector specific and other Rules-based visas

Other visas will fall outside the proposed Points-Based System and will not lead to settlement in the UK. The Government has abandoned the White Paper proposal for a general, 12-month visa for workers of all skill levels. Instead there will be temporary, capped visa schemes for low-skilled labour to support particular sectors, e.g. the Seasonal Agricultural Workers’ Scheme, the cap for which will increase from 2,500 workers per year under the ongoing pilot to 10,000 workers per year. The sector-based schemes will be based on advice from the MAC, which will take on more responsibilities to monitor the labour market and report on reducing migration and filling gaps in the labour market.

The Youth Mobility Scheme, a 2-year visa for 18-30 year-olds from certain countries, will be maintained. It might also be expanded to include further countries as proposed in the White Paper.

The Government has reiterated its plan to revive the two-year post-study work visa. This will be available from 2021 for students graduating after its introduction.

The Government has also mentioned short-term visit visas for touring and ‘work’. It is not clear if this will translate into expansion of the current business activities permitted to standard visitors or expansion of the permitted paid engagement scheme. The permitted paid engagement scheme allows visitors to undertake specific types of work for up to one month.


What does a 31 January 2020 Brexit mean for EU nationals?

The Conservative majority means that Parliament is likely to ratify the new Withdrawal Agreement in time for Brexit to occur at 11 pm on 31 January 2020. The transition period will then begin and continue until at least 31 December 2020. The UK and the EU can agree to extend the transition period for up to two years. To extend the transition period, the UK and the EU must agree a new financial settlement by 1 July 2020.

EU nationals and their family members who are here before Brexit and those who arrive during the transition period will be eligible to apply for the EU Settlement Scheme, which offers pre-settled status or settled status depending on the length of residence in the UK. Those who are granted Settled Status will not lose that status unless they spend a continuous period of 5 years outside the UK. Under the terms of the Withdrawal Agreement, the deadline to apply for the EU Settlement Scheme will be 30 June 2021. This deadline would change if the UK and the EU agree to extend the transition period.

EU nationals and their family members who arrive in the UK after 31 December 2020 must first secure a visa in one of routes under the future immigration system described above.


Digital immigration status

The General Election press release sets out plans for digital immigration status and electronic visas and travel authorisations. Migrants are to have digital status from ‘beyond 2022’. Successful applicants to the EU Settlement Scheme already have digital status. The Conservative party envisions migrants sharing their digital status with employers, landlords, the NHS and banks to demonstrate their rights. This is likely to operate in the same way that some migrants can currently generate a ‘share code’ to provide to employers who use it to access online confirmation of the migrants’ right to work.

Electronic travel authorisations might operate similarly to the US’s Electronic System for Travel Authorisation (‘ESTA’). ESTA is a visa waiver programme. Nationals of countries with whom the US has agreed visa waivers can apply for ESTAs online in advance of travel. The process is quicker, easier and cheaper than a visa application.

Electronic visas, or ‘E-visas’, will be introduced. Applicants will use an ID verification app as part of the application process. Again, the ID verification app is likely to be similar to the one that EU nationals currently use to apply for the EU Settlement Scheme. As the first step in the EU Settlement Scheme application process, an applicant uses the app to scan their passport, read the biometric chip in their passport, take their photo and scan their face. Carriers will conduct automated checks on these electronic visas.
The UK will rely on data-sharing between the Home Office and other departments such as HMRC and the Department for Work and Pensions to verify migrants’ compliance with the terms of their visa. For example, the Home Office might verify that a sponsored skilled worker’s salary is consistent with their work authorisation in this way. The MAC will also monitor migrants’ effects on communities through the digital immigration status system.

Immigration is an ever-changing area of law. Will the Government’s policies be more egalitarian, or will the nationals of the UK’s trading partners and other ‘low risk’ nationals be the new favoured migrants after free movement ends? What are the benefits and dangers of increased reliance on automation in immigration processes and decision-making? As always in immigration matters, the devil is in the detail and little detail is available.


Contact us to help your business prepare

Businesses should ensure that their compliance systems are robust, particularly if they sponsor skilled workers. Those businesses that do not yet have a sponsor licence should consider applying for one, to protect their ability to access the talent they need. Businesses should also ensure that any EU national or EU national family member employees apply to the EU Settlement Scheme. If they do not, they may not have legal immigration status after 31 December 2020. Contact the immigration team at Spencer West for an audit if you are unsure of the strength of your compliance. We would be pleased to help with applying for a sponsor licence or with applications to the EU Settlement Scheme.

If you have any questions or would like to discuss how your organisation can prepare for the changes, please contact Immigration Law Partner Samar Shams on 07591 385033 or at samar@spencer-west.com.