Employers get first glimpse of post-Brexit visa system

So now we know. From 2021, free movement of EU workers will end (no surprise there). The bigger announcement is that EU citizens moving to the UK will also lose their priority status, so their worker immigration status will be based on filling skilled jobs rather than their citizenship.

For more than two years we have been waiting for announcements about the new rules for EU workers moving to the UK after Brexit. We reported recently on the provisional settlement scheme for those already in the UK before the end of the transition period on 31 December 2020, but what about European citizens arriving after that date? The Migration Advisory Committee (MAC) - the organisation that gathers evidence and makes immigration policy proposals - has been looking at this for the last year. Now that the government has announced initial responses to the MAC’s recommendations, we have a better picture of that new system.

As well as free movement ending, there will no longer be preferential treatment for EU citizens. From 2021 EU citizens moving to the UK will need a visa to work. That headline is unlikely to change, but it's possible that the UK may make further concessions as part of the ongoing trade deal negotiations with the EU. And all of this needs fleshing out both in an immigration white paper due towards the end of this year and in new legislation in 2019. For now, here are the key things you should know.

• Free movement will end. Any EU citizen and family members already in the UK by the end of 2020 will retain the current benefits of EU law and have a route to permanent residence through a simplified application system. You can hire those EU workers or continue to employ them (until and beyond 2020) without worrying about needing a work visa, provided they register under the new settlement scheme. From 1 January 2021 that automatic right of newly arriving EU citizens to work in the UK without a visa will end. Visas will not (hopefully) be needed for business or tourist travel – although the EU is introducing a new online travel authorisation system similar to the "ESTA" scheme for travellers to the US - but EU workers will need immigration permission to work in the UK. In many cases that will require a qualifying job offer from a sponsoring UK employer.
• EU countries will no longer get priority status. From 2021, the same core rules will apply to workers from all countries. The current distinction between EU and non-EU countries will end, although individual countries - India is one example - may seek relaxation of visa restrictions for their citizens as part of the negotiation on future trade deals. The current system already has variations between non-EU countries, for example the Tier 5 Youth Mobility and UK ancestry scheme already gives extra visa routes to citizens of some Commonwealth countries. But adding layers of bespoke solutions into an already overly complex system will not help provide assurance or certainty to employers and visa applicants.
• Rolling out Tier 2 sponsorship to EU workers. Despite its well-publicised complexity, rather than using Brexit as an opportunity to redesign the immigration system, the current Tier 2 work visa system will be expanded to apply to EU workers too. This will force many employers, especially SMEs and start-ups, into the Tier 2 regime that have so far avoided the extra administrative effort and cost resulting from sponsorship. That extra cost is likely to include the Immigration Skills Charge (ISC). The ISC is a skills tax imposed on Tier 2 sponsors – it's £364 per year of sponsorship for small employers and £1,000 per year of sponsorship for medium or large employers, payable on top on other visa fees.
• Lowering the Tier 2 skill level. This has not been agreed, but the MAC suggested lowering the skill level of Tier 2 roles from graduate level to include medium skilled roles. Studies have shown that 75% of EU nationals in the UK now would fail to meet the current graduate level skill standard applying to non-EU workers, which coupled with a widening skills gap caused by Brexit, emphasises the importance of this proposal. But it will be another factor forcing more employers into the sponsorship system. Will the government invest sufficient resources into personnel and technology to manage more sponsors and the higher Tier 2 visa volumes that will result?
• Scrapping the RLMT and the visa cap. The government has not yet responded, but the MAC proposed removing the Resident Labour Market Test (RLMT), which forces employers to advertise certain roles giving priority to settled applicants, and the immigration cap. The cap imposes an annual quota of 20,700 visas for certain types of Tier 2 General recruitment. If implemented, both changes would be a welcome relief for employers. Rather than relying on the administrative burden of advertising roles and an arbitrary visa cap, the committee recommended that imposing a minimum salary level - £30,000 was proposed - is a better way to control flow. Alternatively, if the RLMT is retained, the MAC suggested granting exemption to roles with salaries significantly under the current high-earner salary threshold of £159,600.
• No specific work visa route for low-skilled EU workers. Although this policy will mirror the current position for non-EU citizens, this is the most difficult issue for employers. Those sectors reliant on an EU workforce such as hospitality, construction, social care and food processing businesses are all concerned, but it will affect employers across the board. The government’s view is that numbers of EU citizens already in the UK coupled with those that will arrive through other routes – such as family members accompanying visa applicants - will be sufficient and that restrictions will incentivise businesses to train up British workers. Employers will hope that the government agrees with the MAC's proposal to expand the current Tier 5 Youth Mobility scheme to some or all EU countries. That visa grants a two year permission to those aged 18 to 30 from certain non-EU countries to live and work in the UK, but without any condition on the type of UK job or salary.

These proposals are not set in stone. The current political environment is uncertain and the UK and the EU have yet to sign a Brexit divorce deal, all of which could lead to a change in government or policy - but this is the clearest indication yet of the direction of travel.