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
Home Office Unlawfully Nullifies British Citizenship In Hundreds Of Cases
31 Jul 2018
Another embarrassing facts about the Home office policy has just been reveled!
I would say this time indeed serious one: The !Home Office Unlawfully Nullifies British Citizenship In Hundreds Of Cases
New figures obtained from the Home Office show that hundreds of British citizens have unlawfully had their citizenship nullified since 2013.
A freedom of information request has revealed that there were 262 decisions to nullify British citizenship between 2007 and 2017, with 176 of these occurring in 2013 alone.
The Home Office can either nullify a person’s citizenship or deprive them of it. Nullification of citizenship has immediate and retrospective effect and can be used in more cases than deprivation. Nullification is far more difficult to challenge and has no right of appeal. Therefore, the Home office decisions on citizenship applications are practicality almost final and definite!
Deprivation cases generally involve national security issues or deception leading to the acquisition of citizenship. The procedure for the deprivation of citizenship is governed by the British Nationality Act 1981 and is strictly regulated.
Nullification of citizenship is an obscure common law declaration. The Home Office can nullify citizenship if it can be proved that the applicant impersonated another person in order to obtain British citizenship. The person who loses his/her citizenship is considered never to have been British.
Therefore any family members, who have obtained their British citizenship through them, will lose their citizenship as well.
In the Supreme Court case of Hysaj [2017] UKSC 82 the Home Office itself conceded that nearly all of the nullification decisions were unlawful! A team of civil servants from the Status Review Unit is now reviewing these historic decisions.
It is believe that most of the historic nullification cases are based on identity fraud, for example, providing an incorrect name, date of birth or other information at the time of the initial citizenship application. It remains unclear as to why the Home Office opted for the nullification procedure rather than the deprivation procedure in these cases.
How to employ skilled non-EEA workers – a Sponsor Licence
Employing an non EEA worker in the UK is not always simple and easy process, specially if an employer asking for a sponsorship licence for first time.
This is because the UK immigration rules are demanding on employers who want to bring talent to the UK.
To employ skilled non-EEA workers, UK employers first have to apply for a sponsor licence. But a refusal rate of 15% suggests employers are struggling to get the application process right.
And through increasingly protectionist policies, designed to encourage employers to favour resident labour, the rules have become more onerous – and costly – for employers.
However, the ability for UK organisations to access skilled talent from overseas has never been more essential.
With figures showing EU workers leaving the UK amidst Brexit uncertainty, and domestic skills shortages in sectors as broad as tech, health and social care, education and engineering, employers in Britain are looking to the global talent market to meet their recruitment needs.
Tier 2 visa
The Tier 2 visa is the primary entry route to the UK for skilled foreign workers from outside Europe.
To be able to hire new skilled workers from outside the EU under a Tier 2 visa, or extend work permits for current employees, employers must apply to UK Visas & Immigration (UKVI) for a sponsor licence.
To apply for a sponsor licence, you must show through the application process that:
You are a genuine organisation operating lawfully in the UK.
Your key personnel named on the sponsor application are honest, dependable and reliable.
You have effective HR and recruitment systems and practices in place.
You are offering genuine employment that meets the Tier 2 skill level and appropriate rates of pay.
What do employers and HR need to know before they apply for a sponsor licence?
Questions to ask before you apply for a sponsor licence
How will you use your sponsor licence?
Since successful licences are valid for four years, you need to be clear at the outset what your recruitment needs will be in order that your licence provides sufficient cover for its duration.
When you apply for a sponsor licence you will need to specify the types of workers you are looking to recruit:
Tier 2 workers: Skilled workers with long-term job offers.
Tier 5 workers: Skilled temporary workers.
You then need to consider how you will use the sponsor licence.
There are two options available – the unrestricted Certificate of Sponsorship (CoS) and the restricted CoS.
Unrestricted CoS are used for new employees with a salary of more than £155,300; switching within the UK to the Tier 2 (General) visa; and extensions.
When you apply for your licence you will be asked to estimate how many Tier 2 certificates you will require. You will then be granted fixed allocations of unrestricted CoS on a yearly basis as part of your sponsor licence.
You must issue the unrestricted CoS to the overseas worker within three months of allocation and within six months of first advertising the vacancy.
Individuals must then apply for Tier 2 clearance within three months of receiving the CoS.
Restricted CoS are intended for new employees applying from outside the UK to enter under a Tier 2 (General) visa and who will be earning under £155,300 per annum, and individual dependants of Tier 4 students applying from the UK wishing to switch to a Tier 2 (General) visa.
There is an annual restriction in place on the number of migrant workers admitted to the UK from outside the EU under a Tier 2 (General) visa on restricted CoS.
UKVI review all applications for restricted CoS on a monthly basis. Those requests which meet the points criteria (minimum 32 points) are approved. If the restrictive allocation limit is oversubscribed, applications are prioritised according to a points table.
The available restricted CoS are allocated based on the highest points scored. Points are awarded based on whether the job is in a shortage occupation, a PhD-level occupation, and the salary on offer.
There are no guarantees if and when restricted CoS applications will be approved.
If a CoS is granted, the employer assigns the CoS to the individual, who can then use the reference number to apply to the Home Office for entry permission.
Any restricted CoS unallocated after three months will be automatically returned to UKVI for reallocation.
2. Who should you appoint as key personnel?
As a sponsor licence holder, you are required to nominate individuals within your organisation to carry out particular administrative functions – so-called ‘key personnel’:
• Authorising Officer • Key Contact • Level 1 user
It is important that you understand what these roles are all about, and who you can – and critically cannot – appoint to them.
You must also understand what your obligations are in terms of the security of e-mails and passwords issued to anyone carrying out these roles. These must not be shared, even between your Key Personnel.
You must make also sure that you have an Authorising Officer and at least one Level 1 user in place at all times. If a member of staff leaves and you fail to appoint someone else to the role, UKVI can choose to downgrade your licence (and charge you for the opportunity to upgrade it again) or even revoke your licence altogether.
Once you have been granted a licence you can also choose to nominate individuals as Level 2 users.
3. Compile your application & supporting documentation
To apply for a sponsor licence you must write and submit an online application. Preparation is essential.
In support of your online application, you must collate and submit supporting documentation to meet the necessary evidentiary requirements.
The supporting documents must be supplied within five days of the initial application. Failure to submit all required documents will result in your application being delayed or rejected, and further costs being incurred.
So it’s important to have prepared all of the necessary evidence and documentation by the time you make your application online.
4. Prepare for a UKVI inspection
You may be subject to a compliance visit from UK Visas and Immigration following receipt of your application. The purpose of a Home Office inspection is to verify whether you have adequate HR systems in place to meet sponsor licence requirement and to assess whether or not to grant the licence.
An audit of your HR operations will be key in prepatring for a site visit, to identify process weakness or omissions that could cost you your licence application.
5. Use of Resident Labour Market Test
Where your organisation is looking to hire overseas, you must first evidence that the domestic labour market has not been able to fulfil the position by using the Resident Labour Market Test (RLMT).
In recognition of shortages in a number of areas, roles which feature on the Shortage Occupation List (SOL)are exempt from the RLMT. In cases of SOL positions, employers may issue a Tier 2 CoS to a non-European worker without the need to demonstrate that a resident labour market test (RLMT) has been carried out.
6. Right to Work
In addition to the new administrative burdens of the sponsor licence, you will continue to be required to meet your illegal working duties. The requirements state that all employees are required to provide documentation that proves their right to work before being employed by a UK company and copies of this information must also be retained by the employer.
7. Internal capability
Are your staff aware of their duties and responsibilities under the sponsor licence? Training is likely to be required to ensure relevant knowledge and internal capability internally across HR, line managers and site managers.
8. Ongoing compliance duties
Sponsor licence holders are required to meet a number of duties, which you must take account of within your processes, policies and procedures.
Some duties appear more widely understood than others.
The duty to notify a change in circumstances is for example often overlooked in reality, particularly where wider organisational concerns demand attention and focus such as a merger or acquisition or other organisational change. Failure to comply with your ongoing compliance duties can result in a downgrade in user rating, a licence suspension or revocation – putting the jobs of existing migrants at risk and impacting your organisation’s operations.
Ongoing compliance management will also pay dividends when it comes to renewing the licence – which is arguably even more of a complex process.
Penalties for failing to comply with immigration compliance and sponsor licence duties are designed to deter and impact operations. Yet UK immigration rules are subject to constant change and revision, making it critical that sponsor licence holders stay up-to-date and compliant with their duties.
