The immigration white paper: further evidence of the UK Government turning back time

In the week before Christmas, the Government published its immigration white paper, setting out its plans to implement a new immigration system once the post-Brexit transition period ends on 31 December 2020.

Although the white paper states that the intention is for the new system to apply equally to both EU and non-EU nationals, it does confirm that EU nationals will still be able to use the e-gates when entering the UK. This will come as a relief to EU nationals who were concerned about the possibility of long queues at the UK border following Brexit.

The white paper also confirms that the Government intends to accept almost all of the recommendations made by the Migration Advisory Committee (MAC) in its report, entitled "EEA Migration in the UK".  Within the white paper, it even lists all the MAC recommendations and states next to all but one of them that it has been "Accepted", the exception being the one in relation to the Tier 2 salary threshold, which has only been "Partially Accepted".

The white paper arguably represents the biggest liberalisation in immigration policy since the speech given by Barbara Roche, the then Immigration Minister, at the Institute of Public Policy Research in 2000. The immigration system which is being proposed will also look strikingly familiar to those who were practicing immigration law at that time, which, I have to admit, includes myself!

I set out below what, in my view, are the two most interesting proposals in the document, together with the compliance challenges that these changes may present.  We will shortly be publishing a more detailed analysis of the white paper.

Visitors

Those who are in the UK as visitors will be permitted to switch immigration status in-country into Tier 2 sponsored employment. Currently, it is only in very limited, exceptional circumstances that those who have entered the UK as visitors may apply to remain under another immigration category. 

When the Government last routinely allowed these in-country switches from the visitor category, it resulted in a number of situations where those who were in the UK as visitors started to work for a UK employer before their work immigration permission application was approved.  It will therefore be important that the Government ensures that this does not happen under the new regime.

In addition, the Government is considering expanding the range of business activities that individuals are permitted to undertake while they are in the UK as visitors.

If the Government does proceed with this, it will need to ensure that this enhanced list of permitted activities does not lead to individuals undertaking work in the UK for which they should be sponsored by a UK employer.

Tier 2

The Government has also stated that, although it will be lowering the skills threshold for Tier 2 (General) to Regulated Qualifications Framework (RQF) level 3, it will maintain the RQF level 6 threshold for the Tier 2 (Intra-Company Transfer) (ICT) category. It has also stated that it will abolish the Resident Labour Market Test requirement for Tier 2 (General) and the cap that applies to the majority of Tier 2 (General) migrants who are applying overseas. In addition, although it has stated that it is going to consider lowering the salary threshold for Tier 2 (General), there is no mention of making any changes to the higher Tier 2 (ICT) salary threshold.

This means that the Government is essentially removing the main barriers (having to advertise the role for 28 days and the danger of not receiving an allocation under the annual quota) that have previously prevented UK employers using Tier 2 (General) in preference to Tier 2 (ICT). Since Tier 2 (ICT) does not lead to indefinite leave to remain (also known as permanent residence or settlement), unlike Tier 2 (General), there does not seem to be any reason why, in the future, any employer would ever sponsor someone under Tier 2 (ICT) in preference to Tier 2 (General).  Since the Government's policy is not to make it easier for individuals coming to the UK to eventually settle, it will be interesting to see whether the Government introduces any new restrictions on Tier 2 (General), or makes any concession to the Tier 2 (ICT) category, to encourage employers to use the temporary Tier 2 (ICT) route.

Conclusion

I have chosen to highlight just two of the areas which, in my view, will require a lot more work if they are going to achieve the Government's twin aims of allowing UK employers access to individuals with the skills which are in short supply in the UK, whilst ensuring that the system does not become open to abuse. The Government states that it plans to consult with a variety of stakeholders over the next 12 months before publishing the Immigration Rules implementing this new system. It is hoped that this engagement is genuine as it is important that the Government develops a robust system which, as far as possible, has the support of those that use it.

What UK business does not want to see is yet another "boom and bust" cycle of liberalisation followed by progressive tightening which has been a depressing characteristic of the system since the start of the century.