UK Immigration Update: Brexit and Beyond

The following alert is directed to organizations with a presence in the UK or who anticipate the need to place employees at a U.K. worksite.

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Seyfarth Synopsis: More than three and a half years after the referendum vote, the UK’s membership of the European Union (“EU”) will end on January 31, 2020 at 11 p.m. GMT. The transition period will likely last until December 31, 2020, during which time the rights of free movement within the EU and UK will not change. The UK Government has stated that it will introduce a new immigration system on January 1, 2021. This week, the Migration Advisory Committee published its recommendations on the future immigration skills-based system.  

 1. Brexit

The Withdrawal Agreement Bill received Royal Assent on January 23, 2020 and the European Parliament ratified the arrangements on January 29, 2020. This removed any further obstacles to the UK’s departure from the EU. At 11 p.m. GMT on January 31, 2020, the UK will no longer be a member of the EU. The “transition period” will then begin, which is currently scheduled to end on December 31, 2020. During this time, the immigration rights of EU nationals in the UK, and vice versa, will remain unchanged.

As previously reported, EU nationals who enter the UK by the end of the transition period must submit an application under the auspices of the new Settlement Scheme - the deadline for doing so under that scheme is June 30, 2021. The rights and requirements for UK nationals residing in other EU countries after the transition period will be determined on a country-by-country basis.

At the end of the transition period, the new UK immigration system will (in all likelihood) take effect on January 1, 2021. It will be a single system for all nationalities, including EU citizens, modeled on the Australian points based system.

2. MAC Report

The Migration Advisory Committee (MAC) is an independent body commissioned by the UK Government to issue recommendations on specific proposals. This week, the MAC issued a 271 page report addressing the UK’s future immigration system. The key points are:

• Skilled Workers with Job Offer: This route is known as Tier 2 General. The MAC does not recommend wholesale changes to the current framework, as the combination of skills and salary requirements work well. However, the MAC suggested some changes which would in fact make the Tier 2 General route easier to use, including allowing sponsorship for roles at the medium skill level (RQF Level 3) rather than the current RQF Level 6 (bachelor’s degree level). The MAC also recommended abolishing the requirement to advertise the role first (known as the resident labor market test). Under the new immigration system, the criteria would apply to all nationalities, including EU citizens.
• Salary: The current salary structure should be maintained, where the minimum is the higher of the general category requirement or the Standard Occupational Classification code. However, it does recommend reducing the threshold for experienced workers to £25,600 (currently £30,000) and for new entrants to £17,600 (currently £20,800). It does not recommend regional variations however suggests expanding the definition of new entrant and applying the salary rate for five years.
• Skilled Workers without a Job Offer: This route is now known as Tier 1 Exceptional Talent and is subject to an annual cap of 2,000, currently undersubscribed due to the high qualifying criteria. The report recommends a “tradeable points-based system” with points awarded for age, qualifications, study in the UK and priority areas (STEM, language and creative skills). This would operate by submission of an expression of interest, selection from a pool of candidates, subject to a monthly cap.
• Settlement: In the UK, the system for granting settlement status (permanent residence) is “inflexible” in that those in employment-sponsored routes must reside in the UK for five years and also meet an minimum income threshold. The report states that there is insufficient data available to ascertain whether the current system works well, and therefore recommends pausing the proposed increases in the income threshold in order to undertake a review of the criteria.

The UK Government is not bound to accept these recommendations, however in the past has taken onboard many of the MAC’s proposals. Therefore, we can anticipate some of these changes coming into effect with the introduction of the new immigration system in January 2021. We expect the Government to provide further guidance in the coming months to allow sufficient time for individuals and businesses to prepare for these changes.