January 7, 2019

Brexit and the UK’s future immigration system


So, here is New 2019 year and new big changes in the UK immigration system!
Again!

The spectre of crashing out of the EU without a deal is sending jitters across the UK. Events have clearly shown that holding a snap poll on immigration failed to do justice to the true merits of EU membership. Last month the government shed further light on the post-Brexit immigration landscape by revealing its White Paper entitled The UK’s future skills-based immigration system. Theresa May and Sajid Javid are adamant that their new plan will be instrumental in delivering Brexit and answering “the call of the British people.” Despite all her political troubles, leaving the EU is May’s dream come true because she can finally tinker with the system and reduce net migration to the tens of thousands, a manifesto pledge that she failed to achieve during her lengthy reign of terror as Home Secretary. May and Javid appear to be very pleased in their respective forwards that unrestricted EU immigration will end in the years to come. Javid presents himself as one of five deprived children of a Pakistani bus driver and his seamstress He holds himself out as a man of the people but he used to be a former managing director of Deutsche Bank, one of the most corrupt banks in the world which preys on the poor and the unsuspecting. Unsurprisingly, the future immigration system will cater to the rich. In addition to his very extreme political beliefs, his lack of experience in the field makes him a very questionable candidate for steering the UK’s future immigration policy.

In a headline-grabbing move, he declared a “major incident” over just a handful of people crossing the English Channel. By making a really big deal out of it, he ramped up his xenophobic rhetoric to demonise refugees. Divided into over a dozen chapters, his White Paper targets various areas such as workers, visitors, students and family migration. The proposals are very heavily dependent on the findings of the Migration Advisory Committee (MAC). The MAC will play a more enhanced role in future times. Mrs May’s introductory comments coincide with her usual anti-immigrant point of view. Chronically low levels of confidence in her crumbling premiership have not prevented her from bragging about a single system focusing on attracting the brightest and best. By ending free movement, the new system will reward “workers’ skills … not which country they come from.” Making permission to come to the UK mandatory for EU citizens is being pushed as a colossal benefit for the safety and security of the British people. The deadline for the EU Settlement Scheme has been set as June 2021. Therefore EU citizens and their family members who do not apply to stay in the UK by the “grace period” ending on 30 June 2021 will not be in a position to demonstrate their rights to access work, benefits and services.

Some analysis of the White Paper follows below. The new system will be rolled out in a phased manner between now and 31 December 2020 or the end of the implementation period.

The end of two systems

Chapter 1 of the White Paper sets the stage by stressing that the parallel systems of immigration for EU nationals and the rest of world will come to an end and the coverage provided to EU nationals and their family members will come to an end because the Citizens’ Directive (2004/38/EC) and the connected domestic UK regulations will cease to apply.

Javid has also presented to Parliament the Immigration and Social Security Co-ordination (EU Withdrawal) Bill which makes provision to end free movement rights under retained EU law and to repeal other retained EU law relating to immigration. Clause 1 and Schedule 1, paragraph 1, of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill repeals section 7 of the Immigration Act 1988 with the result that EU nationals and their non-EU family members will require permission to enter and remain in the UK under the Immigration Act 1971. The UK will embrace a uniform system of immigration control but greater resources will be needed to closely monitor the movements of the hundreds of millions of people from the EU who can presently enter the UK and make it their home with the minimum of formalities.

The details of the future immigration arrangements (i.e. the precise rules to be met to come to the UK as a worker, student, family member and so forth) will be set out in the Immigration Rules, as they are now for non-EU nationals.

The rules for EU nationals will be finalised taking account of evidence, including from the MAC as well as stakeholder views. The rules may be the same as those for non-EU nationals, or they may be different.

Sponsored workers

The government is depicting the UK’s liberation from free movement as creating space for people wanting to work in the UK who were previously blockaded from entering because of the limit on Tier 2 (General) certificates of sponsorship. The totally haphazard and unpredictable way in which the rigid system presently operates will be reformed. For example the monthly allocations of so-called restricted certificates of sponsorship will cease once the law of free movement ceases to apply in the UK. Substantial changes will be made to the present system and the Tier 2 monthly panel will be removed to make way for continuous processing of visas throughout the year without the undue delay caused by the cyclical nature of the monthly allocation procedure.

The future system will create a single route offering access to highly skilled and skilled workers from all countries. The complex and kaleidoscopic system used for sponsorship at the present time will be relaxed and the cap on the numbers of skilled workers (presently 20,700) will end. A reformed new route said to aid a flexible labour market and support businesses will come into existence and employers of skilled migrants will no longer need to carry out a Resident Labour Market Test (RLMT) as a condition of sponsoring a worker. MAC found that the RLMT was a cause of delay and it did not serve the intended purpose of stopping downward pressure on wages since protection is provided by payment of the Immigration Skills Charge (ISC) by employers. The flexibility and simplicity lost by the end of free movement needs to be compensated so the future system for employing foreign workers will be more streamlined and simpler to operate.

The White Paper states that the great majority of work visas will be processed in a matter of two to three weeks. Labour market flexibility will be supported by permitting nationals of the lowest risk countries to apply for a work visa in the UK and the new skilled route will include workers with intermediate level skills, at RQF 3-5 level (A level or equivalent) as well as graduate and post-graduate.

The minimum salary threshold will be £30,000 and more discussions will be held with businesses and employers as to the precise salary threshold that should be set. Notably, the cabinet is split over the £30,000 salary threshold. MAC is also going to review the Shortage Occupation List (SOL), including for occupations at RQF levels 3-5 and it will report back with its findings in spring 2019. Attempting to use Tier 2 as a silver bullet to fix everything is a huge new experiment that may come with hidden problems that will only become clear once the new system is fully functional.

Short-term and other workers

In relation to unskilled workers from the EU, we are informed that a 12-month visa will be operated but without any entitlement to access public funds or rights to extend a stay, switch to other routes, bring dependants or lead to permanent settlement. MAC did not advise the government to open up a dedicated route for unskilled labour and so such a route will not be created. The reason provided is that lower skilled migrant labour depresses wages and stifles innovation in the UK economy. Thus, the government looks upon the end of free movement as a “unique opportunity” to redesign the immigration system to give priority to those who contribute the most to the UK’s economy and society.

But in order to plug in the gaps during the transitional period after the UK’s exit from the EU, there will be a new route for temporary short-term workers at any skill level to come to work in the UK. Such workers will require a visa and the Home Office will set certain restrictions on nationalities, duration and also numbers on this “tightly defined” route (which will be subject to a cooling off period of a further twelve months to stop long-term working). Exploitation and abuse of the workers using the route will be monitored and the system will operate a regime of penalties, sanctions and data-matching. The route will endure until 2025 and stakeholders such as businesses and local communities will be consulted and MAC will review events to make further findings.

The position on seasonal agricultural workers is that the government and MAC concur that despite the challenges confronting the agricultural industry an easy/simple option for the agricultural sector must sacrifice proper monitoring of conditions of employment to avoid exploitation of workers. Overall, any seasonal scheme for agricultural workers will be temporary. But other categories such as artists, professional sports persons, entertainers, talented scientists and researchers will enjoy improved routes into the UK.

The Tier 1 (Graduate Entrepreneur) route will be replaced by the Tier 1 (Start-Up) category. The new visa will be launched in spring 2019. All business people, and not just recent graduates, will be able to apply in this category after getting endorsement from a university or an approved business sponsor. And further expansion of the Tier 1 (Exceptional Talent) space is on the cards once Brexit becomes the order of the day.

Approximately 20,000 visas were granted under Youth Mobility Schemes (YMS) from September 2017–September 2018. The UK currently operates reciprocal youth mobility arrangements Australia, Canada, Hong Kong, Japan, Monaco, New Zealand, South Korea and Taiwan. Around 59,000 places were available in 2018.

These YMS allow people aged 18-30 to come to the UK for two years, during which period they can work or study. Although entrants are not obliged to work, they may acquire highly skilled work – even though the evidence shows that most employment in this cohort is low skilled. The White Paper proposes a UK-EU wide reciprocal YMS which will plug in the gaps in UK labour market.

Visas for trade deals

The White Paper points out that as and when the UK agrees trade deals more favourable provision for specific nationalities will be made by changes to the Immigration Rules.

Thus, the future rules for EU nationals and others will be alike unless the latter category is provided more generous treatment owing to a trade deal.

The Home Office is also proposing to expand, on a reciprocal basis, the current range of “GATS Mode 4” commitments that have been made as part of EU trade deals.

The General Agreement on Trade in Services (GATS) is a treaty of the World Trade Organisation (WTO) covering four modes of cross-border supply of services. Moreover, Mode 4 concerns the supply of a service by one member, through presence of natural persons of a member in the territory of another member.

The GATS does not apply to measures affecting access to the employment market of a member or to measures regarding citizenship, residence or employment on a permanent basis.

Therefore, the expansion may cover independent professionals, intra company transfers, business visitors and contractual service suppliers. In order to support businesses and tourism, the UK is seeking to negotiate with the EU a Mobility Framework as a part of which the government will seek to negotiate with the EU reciprocal provisions for short-term business visitors arriving after the end of the implementation period. In due course, similar arrangements could be made available to other countries with whom the UK concludes trade deals, which may go beyond what is currently allowed in the visitor rules. Overall, the White Paper states that the future Immigration Rules can be adapted to take account of any future trade arrangements with other countries.

Harmonisation of criminality

The Home Office explains that the opportunity of exiting the EU will come with the advantage of creating space for a single, consistent approach to criminality across the immigration system. On the existing situation EU citizens are subject to different thresholds of criminality than those for non-EU nationals.

Under the Citizens’ Directive and the transposing regulations, a criminal from the UK can only be deported from the UK if his conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

Those in possession of the right of permanent residence can only be expelled on serious grounds of public security Moreover, imperative grounds of public policy or public security are required to expel those who have resided in the host member state for the previous ten years. In Vomero (C-424/16, EU:C:2018:256, see here), the CJEU held that permanent residence is a mandatory prerequisite of eligibility for enhanced protection.

Whereas the current UK deportation rules for non-EU citizens are more stricter and more specific, the EU regime does not specify the length of imprisonment or the behaviour which may result in the refusal of entry, exclusion or deportation of an EU citizen from the UK. The test for deportation in EU law is such that even a person with a very appalling criminal record (subject to successful rehabilitation of course) can quite easily overpower the Home Office in deportation matters. Therefore the government is quite delighted that immediately after the implementation period EU citizens and their non-EU family members who breach criminal law in the UK will be considered for deportation under the same criteria currently applying to non-EU nationals. The two parallel regimes in criminal deportation cases will be harmonised and non-EU criminality criteria will be extended to EU citizens so as to “ensure equal treatment of EU and non-EU citizens.”

Departure from the existing hierarchy of protection conferred by the Directive will fully expose of EU citizens to automatic deportation under the UK Borders Act 2007 which only requires a single conviction of 12 months’ imprisonment for a foreign criminal to be expelled. The future deportation regime for EU nationals will also fully expose them to Part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended) which makes provision for public interest considerations under article 8 of the ECHR. The mechanics of Part 5A and the Immigration Rules do not at present apply directly to EU nationals notwithstanding the fact article 8 applies equally to everyone irrespective of nationality.

Family migration

Under the Immigration Rules, the Minimum Income Requirements (MIR) impose a gross annual income of £18,600 to sponsor a partner and require additional requirements of £3,800 for the first child and £2,400 for each child thereafter.

In MM (Lebanon) & Ors [2017] UKSC 10, the Supreme Court held that the MIR produce “a particularly harsh effect” but were acceptable in principle because of the ECtHR’s ruling in Konstatinov v Netherlands [2007] ECHR 336.

The MIR applies to British citizens, settled migrants, refugees and those granted humanitarian protection aiming to sponsor a post-flight partner and dependent child or children. The MIR does not presently apply to EU nationals exercising their free movement rights.

Leaving the EU will also mean that everyone including EU citizens, who is settled in the UK and wants to bring their family members to live with them must satisfy the UK’s family Immigration Rules. In other words, Appendix FM and its sinister siblings will apply in a freewheeling kind of way all across the board to everyone. Even more people will face the misery created by Theresa May’s cruel rules and there will be more Skype kids and parents than before. Yet rather than accepting these ugly realities, the White Paper insists that the family rules are operated to minimise burdens on the taxpayer, promote integration in UK communities and tackle immigration abuse.

The repeal of section 7 of the Immigration Act 1988 will also mean that those EU nationals without indefinite leave to remain will have a precarious status within the meaning of section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (as amended) and the Supreme Court’s ruling in Rhuppiah [2018] UKSC 58 (discussed here).

LIUK test

The White Paper sets out that the forthcoming Integrated Communities Action Plan will refresh the Life in the UK test. It states in terms that the changes will better reflect modern British values and the language requirements for those seeking to become British citizens will be strengthened. The last review of the LIUK test was conducted in 2012 and Sajid Javid has made it his hobbyhorse to improve the existing LIUK test because he perceives it to be a “bad pub quiz”.

Digital delivery

Building on the digital delivery of the EU Settlement Scheme, the future system will also operate digitally. The speed at which the system will operate is a strong reason to pursue digital delivery and increase efficiency. This is an ambitious aim because the White Paper states that the costs and benefits of these proposals have not as yet been quantified.

Comment

The White Paper came under attack from numerous organisations.

For example, the Immigration Law Practitioners’ Association (ILPA) quickly denounced it as a highly opportunistic way to create a playground to “attract richest migrants, highest earners and create a set of parallel rules for numerous types of migrants, dependent upon the trade deals struck in a post-Brexit world.”

An issue of critical importance is that the White Paper does not address the key fact that the proposed £30,000 per annum salary is not capable of “responding to shortages in primary and secondary teaching and nursing at the junior end” because salaries are significantly lower than that threshold.

The Confederation of British Industry (CBI) also excoriated the government’s proposals because of their failure to support the economy and command public confidence. The CBI, which is the voice of business, has made it clear to the government that immigration is valuable to all sectors of the UK economy and delivers significant economic benefit.

The CBI pointed out that the construction and healthcare industries have been neglected by the proposals which do no address the UK’s true immigration needs and “would be a sucker punch for many firms right across the country” because the government knows very well that “people and regions will be poorer” as a consequence.

In the Open and controlled: A new approach to immigration after Brexit report, the CBI advocated the case for easy access to people and skills because this is a high priority for business. The CBI seems to be frustrated that the White Paper does not replace free movement with a new, open and controlled immigration system for EU citizens.

The digital delivery of immigration permits will inevitably open up a new can of worms because permit holders will only have a number to prove their entitlements. This will mean that landlords in the hostile environment will refuse to rent housing to those who cannot produce a physical document proving their rights. The same of course will be true of employers. Windrush has already demonstrated in emphatic terms that persons who are entitled to remain in the UK are quickly shunned by society if they cannot produce hard copy documents to prove their status. The National Audit Office found that the Home Office handled the Windrush situation extremely poorly and that it has still not established the full extent of the problems affecting people of Windrush generation.

The White Paper is replete with references about how the UK is at the forefront of the defending human rights of the vulnerable and those fleeing persecution. While the government is eager to create a false impression about its protection of refugees and vulnerable persons, the truth is all too apparent from the vile manner in which Sajid Javid has been attacking the handful of people who have arrived in the UK from France in small inflatable boats.

Since 2010, May’s constant immigrant bashing has contributed hugely towards swinging public opinion in favour of Brexit. Perhaps if she and David Cameron had not attacked immigrants by the creation of the hostile environment, then fewer people would have voted to leave the EU in the referendum and all the ongoing wasteful realignment of affairs would not have been necessary.

Posted on January 6, 2019

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