Even before the White Paper was published on 19 December 2018 after consultation with the migration advisory committee, some details of it had already been leaked to the national press on skilled and unskilled workers and investor applications, and I have already dealt with the leaked information in general form in a previous article.
And the free movement after the transitional period 31 December 2020
However, it is now confirmed through the “horses mount”, that free movement will end after the UK leaves the EU on 29 March 2019 but at the end the transition period, 31 December 2020.
The proposals are said to be the biggest changes to the immigration system in a generation and the government intends to ensure that they can attract the brightest and best migrants to the UK. It is with great regret however that they are also taking a very naive approach as to how immigration should proceed in the years to come after Brexit.
EU nationals will not have any advantage over non-EU nationals
The idea is not to give European Union nationals any advantage over any other non-EU nationals. This idea is good in my view. So, the skilled workers route under the Tier 2 (general) programme, will be open to all nationalities. There will be certain medium skilled workers who would be in a position to come to the UK as well, and also unskilled workers for a shorter period of time.
Deportation threshold on EU nationals
At present it is difficult to deport EU national, and depending on the length of their residency and exercise of treaty rights, the bar is raised accordingly. After Brexit you nationals will be subject to the same standards as non-EU nationals.
Removal of the Cap on Tier 2 (general) migrant visas
The idea is to allow businesses to decide what they require in terms of labour. They will be able to hire any suitable qualified migrant. There is at present a cap of 20,700 applications per annum, divided in monthly increments, and this limit has placed huge burdens on the medical profession, in particular the National Health Service reliant upon skilled doctors and nurses. There are many vacancies that need to be filled, but which cannot because of the Cap. Consequently, the cap is exceeded regularly, application returned, and there is therefore a need to reapply. This adds to the delay process which is not conducive to business.
Abolition of resident labour market test
Since businesses will be able to hire suitable qualified migrants, the resident labour market test will be abolished. That test was originally implemented to protect British and EU labour. This test currently requires the employer to advertise in the national press, or job centre for at least a 28-day period, to give persons in the British labour force and in the EU the first opportunity to apply for the post, and only if they are not able to meet the business requirements of the employer, can the employer recruit from outside the EU. Since the UK is leaving the EU there will be no need for the resident labour market test. So therefore, removing the Cap on quotas and the labour market test will be good for business.
The naivety of the government
The naivety of the government can be seen in the time-limited route for temporary short-term low skilled workers, including seasonal low skilled workers in farming, such as fruit pickers. The creation of this Visa category for low skilled workers with visas for only 12 months is not a good idea. They will need to leave the UK on or before the termination of their visa and cannot extend it, and furthermore there will be a cooling- off period of a further 12 months before they are able to apply for a fresh visa come to return to the UK.
low skilled workers (a throwback to the previous “sector based” employees, such a meat cutter, kitchen operators etc, abolished when the Government realised the abuse that was prevalent in that area), will not require employer sponsorship, as they will be low shilled/ unskilled workers coming here to fill vacancies in restaurants, markets and other labour-intensive industries. Therefore, as such workers, they will be in a position to come to the UK on successful entry clearance visas, for short-term stays of 12 months, but must then leave the UK prior to the expiry of their stay, and cannot reapply for 12 months after they leave. This in my view will create more problems than it will solve. If the idea is to have managed net migration to the UK, it is highly unlikely in my view, that such unskilled / low skilled workers would leave on before their temporary short-term Visa expires. The pattern has been, and immigration lawyers will only be too aware, that persons do with regret overstay their welcome, and there would be nothing to stop these migrants to simply disappear into the black economy and not to resurface until they form human rights article 8 ties with the UK and make application to remain on that basis
Another nativity of the government in this area of unskilled/low skilled time-limit workers is that they should be from “low-risk “countries. I am not sure which countries the government considers to be low risk when such migrants will in fact leave before the Visa expires.
Post study workers
There is to be an extension of the post study period for all international students for a six-month period which will enable international students to gain some employment expertise. However, this also is not in my view a good idea either. The post -study work visa category was abolished because of abuse, and many migrants simply stayed on after the two-year maximum under that visa, some then clocking up that period with the period of time already spent as students, in order to make an application under the continuous 10-year lawful residence route. This Visa therefore encourages migrants to simply stay on. If the idea is to reduce migration to manageable proportions, this route and unskilled/low skilled route with its maximum 12-month visa grant should not be a implementation proposal.
Some useful proposals– not the £30,000 requirement !
There are however some useful proposals in the government White Paper such as removing the cap for high skilled visas and lowering the qualification requirements to A level or advanced apprenticeship, and also removing the labour market test. But the £30,000 salary threshold for Tier 2 skilled workers to come to the UK on a job secured, has been heavily criticised as a salary far too high to achieve, which could affect approximately 60% of jobs at intermediate skill levels. This particular requirement has therefore been placed on hold for the time being, pending any further negotiations with pressure groups such as ILPA and heads of prominent businesses in the UK.
There will be no Visa requirements for visitors who to enter the UK for short-term trips as tourists for a six-month period maximum per annum or as business visitors. The burden of proof will be on them of course to establish they are short-term tourists or business visitors.
No radical change on asylum applications but Dublin Convention to be revisited– permission to work considered during the asylum process
There will be no radical changes on asylum. I understand that the government would like to negotiate a better Dublin agreement for sending third country national asylum seekers back to EU countries where they had originally claimed asylum or had been fingerprinted as a prelude there to, but had then left and come to the UK. And there is also some hint at granting asylum seekers the right to work if they have made an application. At present if their application has not been considered for at least one year, they can make a request to the Secretary of State for permission to work, but unfortunately the permission to work is invariably granted based on shortage occupations which are highly skilled work and therefore of no use to the majority of asylum seekers.
The desire to reduce migration to manageable proportions
I do know that the Prime Minister’s own desires is to bring to an end almost all low skilled migration at the end of the transition period in December 2020 and has rightly urged employers to train British workers rather than to rely on foreign labour. I believe that is sensible, but it is not a view taken by Sajid Javid, Home Secretary.
Tier 1 investors– suspension of visas—” suspended”!
Insofar as Tier 1 investor visas are concerned, the immigration minister decided that this Visa category would be temporarily suspended as of midnight 6th December 2018 to investigate issues of money laundering and the source of funds of migrants wishing to come and settle in this country as investors showing funds of £2 million plus for investment in certain authorised investments, in return for permanent residency in due course, and the more invested would mean, residence in that regard in a shorter period of time. The Home Office has confirmed however that this category still remains open for the time being subject to draft legislation being introduced in Parliament to deal with it in due course and other immigration policies.
The emphasis on endeavouring to revamp immigration now is not on lowering net migration to below 100,000 , a proposal that has always failed to achieve its objective, but to significantly lower migration which is a safer approach, and a reasonable goal to achieve.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.