U.K. Immigration Update: The Immediate Post-Brexit Landscape

The new relationship between the United Kingdom (U.K.) and the European Union (EU), set in motion by the U.K.’s official departure from the EU, will very likely lead to significant changes to the U.K.'s immigration system, and we are beginning to see a few indications of where the U.K. might be headed.

Currently, we are in a transition period where all rules will stay the same until 31 December 2020. Although little will change until then, negotiations between the U.K. and the EU will begin imminently on the new relationship for 2021. Last week, the British government unveiled a new Global Talent visa route, and the Migration Advisory Committee (MAC) released their report on the future immigration system.

The Migration Advisory Committee Report

The MAC (which is made up of independent economists and academics) released a report last week. Contrary to the government's rhetoric on the benefits of the Australian points-based system, the MAC believes that much of the immigration system should actually operate similarly to today, just without the preference to the European Economic Area (EEA) and EU nationals.

In their latest report, the MAC made recommendations on salary thresholds, and whether the U.K. should implement an Australian point-based immigration system. In particular the MAC recommended:

Tier 2 (General) – Sponsored Workers

• Keep the Tier 2 (General) route for skilled workers with a job offer, and also keep the combination of skills requirements and minimum salary threshold.
  • The category should also be widened to accommodate “medium skilled” workers.
• Keep the salary threshold but reduce it from £30,000 to £25,600 (for experienced workers) and from £20,800 to £17,920 (for new entrants).
  • The definition of new entrants should also be expanded to include people who are working toward professional qualifications and those moving into postdoctoral positions.
• Maintain the prohibition on part-time workers to meet the salary threshold on a pro rata basis but include an exception for existing leave holders to switch to part time if they become a parent.
• Keep the prohibition on including additional forms of compensation (e.g., pensions or equity) to meet the salary threshold.
• Abolish the cap on the number of Tier 2 holders and abolish the Resident Labour Market Test (RLMT) in accordance with their previous recommendations. If this occurs, the MAC believes that the Shortage Occupation List should also be abolished because it would no longer be relevant.
  • For employers who hold sponsor licences, these recommendations should make the sponsorship of individuals easier and faster. The abolition of a quota and the RLMT should reduce the amount of time it takes to bring an individual into the country.

Tier 1 (Exceptional Talent)

The MAC believed that an Australian points-based approach could be used in the category for highly skilled workers without a job offer. They believe that the current system (including the Tier 1 Exceptional Talent route) is too restrictive. The way that MAC believes it should work is that a potential applicant (if they qualify for a minimum amount of points) should send in their application to be held in a pool. There would be a capped monthly draw for people to receive the status, and the draw would be points-based so that those with more points (i.e., higher-level skills) or those with stronger connections to the U.K. would be prioritised. They recommend that points should be awarded for characteristics such as:

• Qualifications
• English language proficiency
• Age
• Ability to work in a priority sector (among others)

The MAC’s recommendations could be seen as tweaks to the current approach to U.K. immigration. It ould increase barriers for EEA nationals to enter the U.K. but lower the barriers slightly for the rest of the world. The government will have to decide whether to accept any of these ideas, or to work toward a much larger overhaul of the way immigration works in the U.K. A new white paper outlining the current government's plans for the new system in 2021 is expected in March 2020, which follows a white paper from former Prime Minister Theresa May's government in 2018.

Notwithstanding the above, on 30 January 2020 a new Statement of Changes for the Immigration Rules was issued that substituted a new Global Talent visa for the Tier 1 Exceptional Talent visa. This new Global Talent visa will come into existence on 20 February 2020.

EU/EEA/Swiss Nationals

Currently, citizens of the EU, EEA or Switzerland do not need residence documents to prove that they are eligible to live in the U.K. However, certain documents that are currently valid for European citizens will not be valid after 31 December 2020. These documents include:

• Registration certificates
• Permanent residence documents
• Derivative residence cards

The EU Settlement Scheme (EUSS) is already open and accepting applications, and many applicants have already received Settled or Pre-Settled Status pursuant to this scheme. All remaining EU citizens who were living in the U.K. on the date of Brexit will have to apply to the EUSS by 30 June 2021 in order to be able to continue living in the U.K.

Individuals approved under the EUSS do not receive a physical document evidencing their Settled or Pre-Settled Status. Rather, in order to prove their right to live in the U.K., they use the portal on the government's website that confirms their status electronically.

British Citizens Living in EU/EEA Countries

There is no Europe-wide approach to the types of documents for which British citizens living in EU/EEA countries should apply in their respective countries of residence to evidence their new status. This is treated on a country-by-country basis and any individual seeking support is welcome to contact our London office with their details and we can direct them toward information for their country of residence by virtue of our network of local counsel across Europe.