Immigration continues to dominate the Brexit debate – here is a round-up of where we currently stand:

Can they stay or must they go? EEA nationals currently in the UK

According to Telegraph reports, Home Office research has concluded that when the UK leaves the EU, just over 80 per cent of EU citizens already here will qualify for permanent residence and Cabinet sources have said that the remainder will be allowed to stay in the UK by way of some sort of ‘amnesty’ (although no detail has been given on how this will happen).   EEA nationals in the UK acquire permanent residence once they have been here for a five continuous year period in a qualifying status (namely, as a student, worker, or self-sufficient or self-employed person) whether or not they have a document from the Home Office to confirm their status (although obtaining such a document is arguably a practical precaution).  EEA nationals who have acquired permanent residence should therefore be able to remain in the UK indefinitely providing they do not leave the country for a continuous period of 2 years or more. There is still uncertainty, however, relating to EEA nationals who will have been here for less than 5 years by the time we leave the EU and it is this group who are being held out as notional ‘bargaining chips’ to ensure reciprocal protection for UK nationals in Europe.

A definitive position may be some while off but the only sensible approach must be to allow this group to remain – the practical consequences of losing such a sizeable workforce, not to mention the huge bureaucratic burden of assessing their status (and trying to enforce removal in some cases) can only be described as economic suicide.  It seems that a cut-off point will have to be introduced after which it would not be possible to guarantee the status of new EEA residents in the UK and, to alleviate concerns of a ‘rush’ of new arrivals, this would have to be a date which has already passed at the point of announcement. In the meantime, reports of an ‘amnesty’ (regrettably ill-judged though that label might be given that it relates to people who are in the UK entirely lawfully) might be the Home Office’s way of gauging public opinion. Whilst UK business would appear to be supportive, the majority of those who voted Leave may be less so.

Proposals requiring employers to publish details of their foreign workers

Since Home Secretary Amber Rudd’s speech at the Conservative party conference last week there has been widespread public criticism of the proposal to require employers to disclose publically how many foreign workers they employ, including from business organisations such as the CBI, the Institute of Directors and EEF (not to mention direct comparisons with passages from Hitler’s Mein Kampf). And yet, according to a YouGov poll, 59% of people say they either strongly or somewhat support the proposals – more than double the 26% who somewhat or strongly oppose them. The Home Secretary has since said that the proposal is ‘not something we’re definitely going to do’ and that has been further weakened over the weekend to (in effect) “something we are most definitely not going to do”. Latest thinking is that reports on foreign worker numbers would be made in confidence to the Government only for its research purposes rather than any actual action or deterrent effect.  There has been no discussion of enforcement, sanction or who would learn what from such bald numbers anyway.  Nonetheless it’s an indication of her desire to introduce strict if controversial measures in order to be seen to control immigration.  Whether or not such measures would be in any way effective seems at present to be a secondary consideration.  We already have strict laws requiring that businesses only employ staff who have the right to work in the UK with breaches leading to sizeable criminal penalties and/or criminal prosecution.  Requiring or encouraging employers to make recruitment decisions based on applicants’ nationalities where they already have the right to work in the UK will amount to unlawful discrimination under our current equality legislation.   The impression of the Government making it up as it goes along is almost irresistible.

Tightening the Resident Labour Market Test

Given that control over EEA migration is some time off (if at all), the Home Secretary has already announced that the Government will begin consulting on restrictions to our current work visa system (known as Tier 2), in particular tightening the resident labour market test to ‘ensure people coming here are filling gaps in the labour market, not taking jobs British people could do’ and to encourage employers to train the local workforce. The test currently requires employers to advertise vacancies in a prescribed manner for 28 days to demonstrate that no suitably qualified resident worker is available to fill the role.  The test only applies to the Tier 2 (General) visa category which is already subject to an annual cap of 20,700 for applicants from abroad in any event (the test doesn’t apply to intra-company transfers, high-earner roles and to those switching from another work visa category from within the UK).  Making the test stricter is therefore unlikely to have any material impact at all on net migration.  In fact, it may only succeed in making it harder for businesses to recruit vital skills for immediate hard-to-fill vacancies regardless of whether or not they are at the same time making every effort to upskill the local workforce.

No indication has been given as to how the test will be tightened but the very same issue was considered in depth (most likely at the request of Theresa May herself when she was Home Secretary) by the Government’s Migration Advisory Committee as part of its review of Tier 2 last year.  Its recommendations published in January 2016 stated: ‘Overall, we believe that the RLMT performs a useful function. It is a means to verify that suitable candidates cannot be found in the resident labour supply. It also allows authorities to monitor the recruitment practices of firms which can expose misconduct… We therefore recommend that the current RLMT be retained. However, there may be some scope to modernise the RLMT to ensure it reflects modern recruitment methods, whilst the Government could also look into improved enforcement in this area’.

What next for UK Immigration?

If we are facing the end to EEA free movement (either completely or in its current form), the key question is whether future EEA arrivals will be given some sort of favourable immigration status. Will Tier 2 be adapted to apply to them in a similar way as it applies to non-EEA nationals or are we looking at an entirely new system? More importantly, will our work visa system be adapted or designed in a way that can control migration without jeopardising UK employers’ ability to recruit the skills they need to succeed and grow, especially if it is without access to the EU’s single market.

The Prime Minister has ruled out an ‘Australian-style’ points-based system favoured by Brexit Leavers on the grounds that it would provide insufficient control on numbers.  Our current visa system is still labelled ‘points-based’ even though the points element, which originally enabled highly skilled non-EEA nationals to come to the UK without a job offer (on the strength of qualifications, work experience, past earnings and age), has all but disappeared.  Work visas are generally now only issued through licensed employers for a specific skilled role with a minimum prescribed salary and, in some cases as explained above, subject to the resident labour market test.

Although it would certainly be a blunt instrument, we could see Tier 2 extended to EEA nationals as a means of controlling all immigration from outside the UK (assuming this is the Government’s ultimate goal). In that case, an employer’s ‘wish-list’ for possible changes might include:

  • allowing for an increase to the current Tier 2 (General) annual visa cap of 20,700 taking into account future restrictions on EEA free movement and acknowledging the continued need for certain UK sectors to recruit the brightest and the best from around the world;
  • the introduction of a more sophisticated mechanism for identifying genuine skills shortages so that work visas are readily available to those employers that need them most, without having to go through the resident labour market test if it will serve no useful purpose. The skills shortage analysis would have to be regularly updated – the Home Office’s current Shortage Occupation List was last reviewed in 2013. That is just not meaningful in late 2016;
  • avoiding any restriction of visas based on the misconception that a role is only highly valued if it is highly paid. This approach was put forward by David Cameron’s Immigration Taskforce but thankfully rejected by the Government’s own Migration Advisory Committee in 2016 (you can see how it might creep back in, though);
  • continuing to allow talented international students who graduate from UK universities to switch into Tier 2 from within the UK by retaining an exemption from the resident labour market test (if necessary, only in certain roles/sectors);
  • introducing work visas for lower skilled but difficult to fill roles (the UK visa system originally had a category for this purpose but it was never activated in light of EEA migration).

Above all, making Tier 2 more challenging or expensive as a means of deterring employers from using it is not the answer nor should the Government assume that employers that do use it are not also doing what they can to train local workers. Proponents of further restrictions to Tier 2 often overlook the fact that it is already a complex, time-consuming, administratively burdensome and expensive system for any employer to get to grips with.  Some might say that this is a fair price for the privilege of being able to hire skilled staff from outside the EEA but there is little or no evidence that UK employers embark on the process specifically to avoid having to employ suitably qualified local staff.  Why would they?  There will no doubt be those that abuse the system but if this is a real concern, our resources would be better spent by enforcing the current rules instead of making them tougher.

For advice on any business immigration issue, please contact Partner and Head of UK Business Immigration, Annabel Mace on 020 7655 1487 or