The new points-based immigration system

4 MARCH 2020

| 7 min read

For anyone employing or planning to employ EU and non-EU nationals, the system is changing from 1 January 2021 when the government will be introducing a new points based system. Alex Russell gives an overview of what employers need to know about the new proposals.

What do we know about the new immigration system proposed by the Government?

On 19 February 2020, the Government published a Policy Statement setting out details of the immigration system it proposes to implement with effect from 1 January 2021. EU freedom of movement will end on 31 December 2020. Broadly speaking, the proposal is for a unified set of rules to cover EU and non-EU nationals alike under a points-based system. It is not the radical overhaul of the immigration system that many people anticipated. Instead, it is essentially an extension of the Tier 2 visa system currently in operation for non-EU nationals, with some streamlining and additional flexibility.

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What you need to know...

How will the new points-based system work?
The mandatory characteristics are:
- Job offer by an approved sponsor (20 points)
- Job at an appropriate skill level (20 points)
- English language skills (10 points)
The ‘tradeable’ characteristics are:
- Salary of £20,480 (minimum) - £23,039 (0 points)
- Salary of £23,040 - £25,599 (10 points)
- Salary of £25,600 or more (20 points)
- Job in a shortage occupation (as designated by the MAC) (20 points)
- Education qualification – PhD in a subject relevant to the job (10 points)
- Education qualification – PhD in a STEM subject relevant to the job (20 points)
The points table appears to be a work in progress. The Government has indicated that it is considering additional attributes which may be traded against a lower salary (eg, relevant work experience, previous study in the UK, other qualifications).
So is the default minimum salary £25,600?

It is not quite as simple as that. It will be possible for a person to qualify for sponsorship earning less than £25,600 (provided they are paid the minimum of £20,480), for example by being sponsored for a role on the shortage occupation list. A separate new entrant salary rate will also continue to exist (eg, for students switching to work visas) and this will be 30% lower than the rate for experienced workers. Migrants will also need to be paid at the higher of the salary specified for their occupation (as set out in the relevant standard occupational classification code) and the general minimum salary threshold, meaning that for some higher skilled roles the minimum required salary will be higher than £25,600. Finally, some occupations (eg, public sector occupations) will be subject to a salary threshold based on published pay scales.
What is the minimum skill level that will qualify for sponsorship?

In a significant change, the minimum skill level will be reduced from RQF Level 6 to RQF Level 3 (ie, roles deemed to be at A level). This increases the number of roles that will potentially be eligible for sponsorship. By way of example, RQF Level 3 roles include hotel managers, leisure and sports managers, shopkeepers and proprietors, laboratory technicians, electrical and electronics technicians, draughtspersons, youth and community workers, housing officers, counsellors, police officers, graphic designers, fitness instructors, legal associate professionals, business sales executives, sheet metal workers, IT engineers, roofers, plumbers, butchers, and veterinary nurses.
Will employers be required to conduct the resident labour market test?

No. As expected, the much criticised resident labour market test will be abolished. This means there will be no requirement on employers to advertise the role to demonstrate that there are no suitable settled workers, or in the case of PhD level roles that the person who will be sponsored is the most suitable candidate for the role. This will reduce recruitment lead-in times by up to around one month and simplify the sponsorship process.
Will there be a shortage occupation list?

Yes. The MAC will be commissioned to produce a Shortage Occupation List of roles where the UK is deemed to have a skills shortage. This will be kept under regular review.
Will there be a cap on the number of visas that can be issued each year?

No. The annual cap of 20,700 which currently applies to Tier 2 (General) visas will be suspended.
Has the Government made provision for regional variation?

No. In line with the recommendations of the MAC, there will be no regional salary thresholds or different arrangements for different parts of the UK. The MAC suggested that additional consideration should be given to Northern Ireland, but this is not addressed in the Policy Statement.
Has the Government made provision for regional variation?

No. In line with the recommendations of the MAC, there will be no regional salary thresholds or different arrangements for different parts of the UK. The MAC suggested that additional consideration should be given to Northern Ireland, but this is not addressed in the Policy Statement.
Will there be provision for work that is deemed to be low skilled?

Controversially, there is no provision for roles deemed to be low skilled, including in social care, construction, retail or hospitality. Many roles in these sectors will not be at a sufficiently high skill level to qualify for sponsorship. The Policy Statement says: “We need to shift the focus of our economy away from a reliance on cheap labour from Europe and instead concentrate on investment in technology and automation. Employers will need to adjust.” The significant impact of restricting low skilled workers from 1 January 2021 has been raised by many sectors. It remains to be seen how and whether the Shortage Occupation List and other carve-outs are utilised to mitigate this.
What will happen to seasonal agricultural roles and roles in the NHS?

There is some sector specific provision for agriculture with the Seasonal Agricultural Scheme being expanded to 40,000 places per year. The Government has also said that a new NHS visa system will provide a work visa with a fast-track decision, a larger dedicated advice service for applicants, and reduced fees. We are awaiting further details.
What additional costs will falls on employers?

Costs may prove to be the sting in the tail for many employers. The Immigration Skills Charge of £1,000 per year, which applies to many roles under the current Tier 2 visa system, will continue to apply under the new system, although there are likely to be some exceptions (eg, for PhD level roles). In addition, applicants will be required to pay the Immigration Health Surcharge, which in most cases is currently £400 per year. These costs will be in addition to the visa application fees.
How will visa applications be made?

Most applications will need to be made online. EU nationals will not be required to enrol their fingerprints but will be required to self-enrol other biometric information (eg, photograph) using a dedicated Home Office app. Non-EU nationals will need to enrol their biometric information as they do now (ie, by attending visa application centres). EU nationals will be issued with status electronically which they can evidence where appropriate using the online checking service, rather than be issued with hard copy documents / biometric residence cards. Non-EU nationals will continue to be provided with physical evidence of their status.
When will the new system go ‘live’?

The Government has stated that it intends the system to be open for applications from August 2020, so that people are able to apply for visas in good time before 1 January 2021. Given the practical changes that will need to be implemented, this timescale may prove not to be workable.
What will happen to the routes for specialist and short-term roles that currently exist?

The current points-based system provides for a range of immigration routes for specialist roles including ministers of religion and sportspeople under the Tier 5 category. The Government has stated that its broad approach will be to open the existing routes which already apply to non-EU nationals to EU nationals. We are awaiting further details of how this will work.
How does the Global Talent Visa fit with this new system?

The Global Talent Visa, which was implemented from 20 February 2020, provides an alternative ‘unsponsored’ route for some highly skilled roles, including in research and academia. This is effectively an expansion and re-branding of the old Tier 1 (Exceptional Talent) category and will continue from 2021. The Government is also considering an unsponsored points-based route for ‘highly skilled workers’ to come to the UK without a job offer, although the MAC has expressed scepticism about the merits of such a route.
Will it be possible to work in the UK on a self-employed basis?

The options will be limited. The Government has stated that it will not be introducing an immigration route for self-employed individuals. Instead, individuals are encouraged to consider other immigration routes (eg, the Innovator category). However, the requirements for most of these routes are fairly onerous.
What will EU nationals who want to visit the UK for short periods of time from 2021 need to do?

EU nationals will be treated as non-visa nationals. This means that they can visit the UK for up to six months without having to apply for a visa in advance in order to undertake limited permissible activities (eg, holiday, attend interviews, given one off unpaid talks, attend conferences, see family, etc). They will also be able to use e-Gates.
Will Irish nationals be treated differently to other EU nationals?

Yes. Due to historic ties and Ireland’s membership of the Common Travel Area (CTA), Irish nationals have a different status from other EU nationals. Irish nationals are generally treated as free from immigration time restrictions from the date they arrive in the UK. This means Irish nationals have a right to enter and remain indefinitely in the UK. This pre-dates both Irish and UK membership of the EU and should not be impacted by Brexit. The UK and Irish Governments have confirmed that the CTA will continue after Brexit. In practice, this means that freedom of movement between Great Britain and Northern Ireland and the Republic of Ireland for British and Irish nationals should continue.
What should EU nationals who are already resident in the UK do?
EU nationals and their family members who are resident in the UK before the end of the transition period (11pm on 31 December 2020) should be protected. They will need to make an application under the Settlement Scheme in order to continue to reside lawfully in the UK. The deadline for applications will be 30 June 2021 and applications are free of charge. The key points are as follows:
- EU nationals and their family members (spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) have been continuously resident in the UK for five years will be eligible for settled status, enabling them to stay indefinitely.
- EU nationals and their family members who have not been continuously resident for five years will be eligible for pre-settled status, enabling them to remain in the UK until they reach the five year threshold. They can then apply for settled status where they have remained continuously resident in the UK for a five year period.
What can we expect by way of further developments?

The Government has commenced an engagement exercise in relation to the proposals. A more detailed White Paper is expected shortly. In addition, the Government is shortly expected to publish its response to the Law Commission Report on Simplification of the Immigration Rules.
What are the key actions employers should be thinking about now?
There are three key actions points for employers at this stage:
- Support for EU staff - continue to support existing EU staff and ensure they apply under the Settlement Scheme by the deadline of 30 June 2021
- Sponsor licences – in the Policy Statement the Government suggests that employers who intend to employ skilled international staff from 2021 onwards and who do not possess a sponsor licence should consider applying for one now. There may be some merit in this (eg, reducing possible delays) but we do not yet have details of how the Home Office will consider such applications. It is also likely that changes will be made over the coming months which will simplify the application process. Existing sponsor licences should be reviewed to ensure they are fit for purpose (eg, they cover relevant sites and group companies).
- Workforce planning - employers who rely on unskilled / low skilled EU migrant labour should begin to plan for how these roles will be filled in future (eg, increased employment costs, investment in training and technology).

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