“New” Post-Brexit UK Immigration Point Based System

As the UK is coming to the end of the transition phase on the 31st of December 2020 and will then have left the EU, the government have designed a new points based immigration system.

The new system will come into effect from the 31st of December 2020, at 11:00 PM, when freedom of movement between the United Kingdom (UK) and the European Union (EU) will officially end.

Why is this needed?

Currently, as part of the EU, UK citizens enjoy ‘Freedom of Movement to other EU member states, which means that UK citizens have the freedom to live and work abroad, and EU member state citizens have the same rights to come to the UK, as long as they meet certain conditions. Once the UK leaves the EU at the end of the transition period, the UK will no longer be covered by the freedom of movement principle and so the UK immigration system is changing.

The government has also stated that the new system, as published in the recent Policy Paper, will be streamlined and simplified, to make it more accessible. They intend to make more use of technology and include some changes that were suggested in a review by the Law Commission.

Who will this affect?

The main group affected by the changes will be EU citizens, as they will now need to apply for a visa if they are coming for any other purpose than a short visit. The government has said that most immigration routes will have the same requirements as they currently do for non-EU citizens.

Who will not be affected?

Anyone living in the Common Travel Area, which includes England, Scotland, Wales, Northern Ireland, the Republic of Ireland, the Isle of Man, Guernsey and Jersey, will still be able to travel within the area without being subject to any immigration restrictions or checks.

What changes are being made?

Tier 2 General Visa Changes:

The government have stated that they want to streamline and simplify the sponsorship process for the existing Tier 2 General Visa, especially for employers. They predict that employers will save up to eight weeks compared to the current process as a result of the proposed changes.

In the new system the Resident Labour Market Test has been removed and the current cap on Tier 2 (General) visas (the current route for skilled workers) will be suspended, which will result in there being no limit on the numbers of skilled workers who can come to the UK. They do state however that “sponsors must still be seeking to fill a genuine vacancy which meets the skill and salary thresholds of the new route” and that “roles cannot be created solely to facilitate immigration of a specific migrant to the UK . How they intend to enforce this has not been specified.

Switching visas:

The new rules will allow most migrants to apply to switch from one immigration route to another without having to leave the UK.

Immigration Skills Charge:

Employers who sponsor migrant workers under Tier 2 (General) and (Intra- Company Transfer) will be required to pay the Immigration Skills Charge (ISC), unless a specific exemption applies. The ISC will be extended to sponsoring employers of both EU and non-EU migrant workers.

Deportation of EU citizens with Criminal Convictions:

The further details on the UK’s points-based system state that, for EU citizens who are currently protected by the Withdrawal Agreement or the UK’s domestic implementation of the withdrawal agreements, tougher UK criminality thresholds will apply to conduct committed after the end of the transition period.

What will stay the same?

Dependants:

Skilled workers and postgraduate students will continue to have the right to bring their dependants.

English language requirement:

The government has stated that applicants will continue to need to “demonstrate they have the ability required for the route and the role they are coming to the UK for” (page 14, The UK’s Points-Based Immigration System Further Details, July 2020). The ways that applicants can prove that they meet the English language requirement will stay broadly the same.

Deportation Rules:

Those already in the UK who are sentenced to 12 months or more in prison must be considered for deportation. Where the 12-month criminality deportation threshold is not met, a foreign criminal will still be considered for deportation where it is conducive to the public good, including where they have serious or persistent criminality.

What categories of visa will there be under the new system?

The new worker categories will include:

  • Skilled Worker,
  • Skilled Work: Health and Care Visa,
  • Global Talent and Start-up and
  • Innovator Visas.

For applicants coming to study there will be a Student Route and a Graduate Route. For those coming to visit there will still be Visitor Visas.

There will be several other immigration routes including

  • Intra-Company Transfers and Intra-Company Graduate Trainees,
  • The Youth Mobility Scheme,
  • Sporting routes,
  • A Creative route,
  • Charity Visas,
  • Ministers of Religion and Religious Workers Visas,
  • Government Authorised Exchange Visas and
  • International Agreement Visas.

The government is yet to publish guidance on whether the Overseas Domestic Workers route will change and are conducting a review of the Seasonal Workers Pilot, which concluded this year, before deciding if it will continue.

Will the new Immigration System be fairer for migrants and the UK public?

The government has promised that this new Immigration System will make things fairer for migrants, as people from all over the world will be treated equally. Those who will notice the changes most will undoubtedly be EU citizens, who will still be able to come for a short visit without a visa but will now have to meet different criteria to stay long term.

The government has highlighted that EU citizens who arrive before the end of the transition period on the 31st of December 2020, and relevant family members, will be eligible for the EU Settlement Scheme. They do have until the 30th of June 2021 to make an application under that scheme.

In some ways, the new system will even things up. Those wishing to bring their spouse or partner to the UK will no longer be disadvantaged by being the spouse of a British Citizen rather than an EU national.  Whether the new Immigration System works well for employers looking to recruit from overseas and for the general public will remain to be seen.

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