The new Rules for the post-Brexit immigration system

The Home Office has now issued the Rules which establish the post-Brexit immigration system referred to by the Home Secretary as the 'Future Points-Based Immigration System'. This marks the start of the most fundamental change to the immigration system since the introduction of the Points Based System some 12 years ago.

With the end of free movement for EEA nationals on 31 December 2020, these Rules will apply to all overseas nationals, including European nationals. Many employers of European nationals will, for the first time, need to get to grips with the UK immigration system. The changes will be effective from 1 December 2020 for non-European overseas nationals and will apply to European nationals arriving in the UK for the first time on or after 1 January 2021.Of most significance are the proposed changes to the immigration route for Skilled Workers. This new route will replace Tier 2 of the Points Based System. For most employers, this visa system will be the only option for recruiting from overseas. This will have a huge influence in shaping the future structure of the UK's labour market. The key characteristics of the new route will be the same as Tier 2 - an employer must be licenced by the Home Office, there must be a genuine vacancy, an applicant must be sponsored to do a specific job and the job must meet a skill and salary threshold. There will however be significant adjustments, most of which expand the immigration system, making it less restrictive, although nowhere close to as liberal as free movement. The system will need to be much more workable than the current system, as the number of licence holding businesses will increase to include European recruitment after the end of the Brexit transition period. In a move consistent with the expansion of the system, the cap on the numbers of visas available to overseas nationals is being suspended. The requirement for employers to advertise a role to the resident labour market, and to only fill a role with an overseas national if there are no suitable resident workers available, is being removed. Sponsors must still be seeking to fill a genuine vacancy which meets the skill and salary thresholds. While the removal of the strict requirements of the RLMT will make many employers' lives easier, the requirement for sponsors to meet the onerous responsibility of being a licence holder will remain, including retaining evidence to demonstrate that a vacancy is indeed genuine. Arguably a subjective “genuineness” test may be harder to meet than the RLMT as strictly prescribed in the old Rules.The 12-month “cooling off period” which prevents an overseas national who has held Tier 2 within the preceding 12 month period from making a new application from overseas is being abolished as is the six-year maximum length of stay in the route. Switching provisions are being liberalised making it easier for people to switch into the Skilled Worker route from other visa categories in the UK.Under the new system, the minimum skill threshold is being reduced from graduate level to occupations skilled to RQF level 3, which is roughly equivalent to A-levels or Scottish Highers.Some roles will still be defined as being in shortage occupations. The Migration Advisory Committee (MAC) advises the government on amendments to the Shortage Occupation list. On 29 September 2020, the MAC published its recommended changes to the Shortage Occupation List. The Government has declined to consider these recommendations preferring to postpone until it is able to assess how the UK labour market develops post-Covid and in response to the introduction of the new Immigration System.The general salary threshold is being lowered from £30,000 a year to £25,600 a year. Employers must also pay the “going rate” for the role, as defined by the Home Office. Going rates are being updated in line with recommendations from MAC. A lower rate of £20,480 can be applied in certain circumstances, where points for salary can be traded for points for other attributes such as where a job is on the Shortage Occupation list, where the applicant holds a PhD in a STEM subject, where they hold a PhD which is relevant to their role, where they are filling certain health and education roles and where the applicant meets the Home Office's definition of being a “new entrant” to the labour market.The £35,800 salary threshold for settlement applications is being removed. Instead, sponsors must pay their skilled workers a salary which equals or exceeds £25,600 per year and the going rate for the occupation.The new system will make more roles available for sponsorship and will remove many of the unnecessary restrictions on overseas recruitment. It is however no substitute for free movement and significant concerns remain for employers who have an ongoing requirement to recruit into lower skilled roles, for which there is little to no provision in the new immigration system, and which have previously been filled by European nationals travelling under the free movement provisions pre-Brexit.Employers who anticipate recruiting from overseas, including Europe, in the future, are being encouraged by the Home Office to secure their immigration licence, in readiness for the changes. Employers will need to factor in the very high cost of sponsorship and adapt to a system which requires specialist knowledge to maintain a licence and to sponsor each role. As with much of the post-Brexit landscape, the impact on the UK labour market and on UK businesses' ability to sustain operations and to grow in the coming years remains uncertain.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.