Can Brexit deliver on immigration promises?

Legal experts from Faegre Baker Daniels explain what has been done so far to address the UK's concerns over post-Brexit immigration laws

The Vote Leave Campaign prior to the referendum was clear on its proposed immigration strategy. In a statement issued on 1st June it was specified that “…by the next general election, we will create a genuine Australian-style points based immigration system.”

While en route to the recent G20 summit in China, Theresa May floated the idea of eschewing an Australian points-based system and instead considering the introduction of a work permit system to administer entry of only the brightest and best European nationals following the UK’s exit from the European Union.

It seems unlikely that the civil service has the resources to redesign the entire immigration system given the resources that will need to be allocated to other areas in the negotiation process. The last vestiges of the UK’s old work permit system, administered by the government, disappeared once Bulgaria and Romania were granted full member status in the European Union. It therefore seems feasible that a work permit system for European nationals might work as it currently does for Croatian nationals.

What is known as Tier 2 is in fact part of the UK’s existing Points Based System, however the specific attributes assessed are the guaranteed job and salary offered by a sponsoring company, rather than the individual’s independent attributes of qualifications, age and potential future earnings. It is the previous work permit system in all but name albeit with the work permit part of the process instead administered by employers (Sponsors) who have previously been vetted by the Home Office.

The current Tier 2 system as it applies to Croatian nationals allows a sponsor to issue a Certificate of Sponsorship (this is analogous to the work permit) for a role skilled at or above National Qualifications Framework (NQF) Level 4 (certificate of higher education level). For non-EEA nationals the skills threshold for Sponsorship is that the role must be skilled to NQF Level 6 (graduate level).

For newly hired Croatian nationals (as opposed to those already employed at an overseas branch of the UK company), the potential sponsor needs to demonstrate that no suitably skilled workers were available in the resident labour market by carrying out 28 days’ advertising.

Areas with a recognised skills shortage are exempt from these advertising requirements and listed on a database maintained by the Home Office known as the Shortage Occupations list. In the substantial shrinking of the resident labour market from all EEA nationals to just UK nationals and settled non-UK nationals, it is to be expected that the number of occupations on the Shortage Occupations list will likely grow.

Newly hired Croatian nationals also need to meet English Language requirements. This is met by either passing a Home Office approved English language test at the appropriate level or by having completed a degree level course where the primary language of instruction was English.

Intra Corporate Transferees are exempt from the English language and advertising requirement but must have been employed for at least 12 months at an overseas branch of the UK employer.

If public pressure or the outcome of negotiations results in having to take a more hard-line stance in reducing net migration figures, the system could operate potentially as the Tier 2 General system does now with sponsors of new non-EEA applicants outside of the UK being required to submit a formal request for a Restricted Certificate of Sponsorship from a monthly allocation administered by the Home Office.

These monthly allocation comprise the much touted Immigration Cap of 20,700 per year. A similar quota could perhaps be put in place for skilled European nationals or the existing Immigration Cap increased to encompass all non-UK nationals.

For unskilled positions, the government may perhaps choose to reopen the Seasonal Agricultural Workers Scheme (SAWS), which was closed in 2013 as the increased inflow of European migrants following the expansion of the EEA had made it redundant, and the Sectors Based Scheme (SBS) for hospitality and food processing.

SAWS had an annual quota administered by nine approved operators who would supply labour to either their own farms or to other farms; SBS was directly administered by the Home Office and required a direct application to be made.

On the day of writing this article, 15th September, the government was due to make a Statement of Changes to the Immigration Rules to Parliament but this has now been pushed back and is due in the coming days.

This will hopefully clarify the direction of immigration policy under Theresa May’s premiership and whether it will become more complex for business to recruit skilled workers from both inside and outside of Europe.

Claire D. Nilson is an associate at Faegre Baker Daniels. She heads the Immigration & Global Mobility Team in the London office.

Alexander Glibbery is a paralegal with the Immigration & Global Mobility Team in Faegre Baker Daniels’ London office.

Praseeda Nair

Praseeda Nair

Praseeda was Editor for from 2016 to 2018.