How a New Points-Based Immigration System Would Work Post-Brexit

This could very much be the case for the UK in our new post-Brexit circumstances.

Here Sonia Cheng, an expert at immigration and corporate solicitors Excello Law, explains what this might look like, how it would work for the UK, and in particular, how it may impact both domestic and cross-border business.

Successful applicants (only the best and the brightest) require a good grasp of English, a higher education qualification, and must have been law-abiding citizens in their own country. To qualify, ‘most people coming into the country will need a clear job offer.’ Although, it should be noted, these are the current requirements already in place for non-EU citizens coming to work in the UK.

Further details are sparse, save for a nebulous statement that ‘we can decide who comes to this country on the basis of the skills they have and the contribution they can make.’ As a transitional post-Brexit measure, people from ‘low-risk countries’ in the EU and further afield may still enter the UK without a job offer and work for up to a year. However, the Home Office’s recent entirely redacted list of nations in different categories of ‘risk’ leaves ambiguity as to which countries are low or high risk. How they decide which category of risk is also unknown.

As a transitional post-Brexit measure, people from ‘low-risk countries’ in the EU and further afield may still enter the UK without a job offer and work for up to a year.

Inevitably, there will be multiple implications for employers, especially those in sectors which employ a high proportion of EU nationals: hospitality, healthcare, social care, food production, retail and construction.

In 2008, the Labour government introduced a points-based system for non-EEA migrants. Despite the government stating that the system was inspired by Australia’s model, there are major differences, including:

• The current system in the UK is employer driven, relying heavily on employers to decide which workers have the requisite skills.

In Australia the government plays a significant role in deciding who should be admitted based on their personal characteristics as well as the jobs that they will do.

• The lack of flexibility when assessing points for visa eligibility.

Under a purely points-based system, it should be possible for someone to come to the UK without a guaranteed job, as long as they meet the necessary points criteria. Points should be awarded to prospective migrants for the skills and attributes that they possess (e.g. education, languages, work experience etc.) and they may off-set points from one to make up for a lack points in another.

Currently, the UK’s system doesn’t allow this. Each criteria has a set number of points to be awarded and the applicant either meets this criteria and gains the points or does not. There is no flexibility to off-set points (except for the current restricted Tier 2 (General) sponsorships where there is a separate points test).

It has been suggested that the UK could allow flexibility for this. In order to ensure better control, the system could prioritise categories such as job offers. However, there has been no suggestion that the government plans to change the current way that points are assessed and attributed.

• The UK’s points-based system also covers other applicants such as, students, entrepreneurs, investors and sportspeople etc.
• The UK’s system requires applicants to have a job/study offer or endorsement from an approved sponsor.
• Sponsors are currently required to undertake a ‘resident labour market’ test before filling a vacancy with a non-EU applicant.

The UK’s current system for foreign workers is considered a ‘dual’ system; EEA workers of any skill level can come to the UK however only ‘highly skilled’ workers are permitted, predominantly, from outside the EEA under the specific work visa routes.

The proposed system will apply to EEA workers and non-EEA workers. Some of the proposals include:

• Abolishing the ‘resident labour market’ test.
• Abolishing the cap on Tier 2 visa numbers.

This is the most popular route for non-EEA workers coming to the UK and the current cap is 20,7000 per year.

• Lowering the required job classification levels.

Currently RQF level 6 (graduate/post-graduate level) to be lowered to RQF level 3 (A -level).

• Introduction of a transitional route for workers at all skill levels, for the as-yet undefined ‘low risk’ countries, to enter the UK for 12 months.

This is purportedly to assist sectors that rely heavily on an EU national workforce such as care services, agricultural sectors etc.

Research carried out by The National Institute of Economic and Social Research and CIPD has produced unambiguous findings about what employers want. An Australian-style points system is not on the list, while a ‘straightforward’ and ‘light touch’ approach is. The research concluded that most businesses hire EU nationals because they ‘have difficulty attracting UK-born applicants to fill unskilled or semi-skilled jobs’.

With such a lack of details, UK businesses will once again have to adapt quickly and endure any new system and legislation the government decides to proceed with.