UK Immigration round up 2018
2018 has been a rollercoaster of a year for UK immigration matters. From changes to the Tier 2 sponsored work system, to the alteration of the settlement path for Turkish migrants; from Brexit dominating headlines to an immigration route being “suspended” overnight (it wasn’t really in the end), there really has been a lot happening in the past year. In this post, we cover some of the key highlights of 2018, touch on some hot topics to look out for, as well as giving an overview on the highly anticipated Immigration White Paper, the publication of which has been delayed by over a year.
HIGHLIGHTS OF 2018
Tier 2 sponsored work
UK employers holding a Tier 2 (General) sponsor licence might recall the difficulties with the recruitment of individuals from outside the EEA, between December 2017 and July 2018. This was due to the monthly availability of Restricted Certificates of Sponsorship (“RCoS”) being oversubscribed each month – the annual availability is 20,700. During these months, the successful allocation of a RCoS to a sponsor was based on scoring a minimum number of points, undetermined until after the monthly deadline for applying for a RCoS. In effect, as there were more applications for a RCoS than there were available, lower paid jobs with a minimum salary of £30,000 were more likely to miss out as priority was being given to jobs which were in the shortage occupation list, at PhD level, and/or being paid a higher salary which scored more points. This caused a lot of problems for employers with recruitment, and in particular to NHS Trusts already facing difficulties with the hiring of doctors and nurses. As a result in June 2018, the Home Secretary took steps to remove doctors and nurses from the annual limit of 20,700. This eased the strain on the monthly availability of RCoS and meant that from August 2018, the demand no longer outstripped the supply. Proposed changes to these aspects are also covered in the Immigration White Paper section below.
In addition, in July 2018 the Home Secretary also implemented changes which meant that sponsored workers taking part in legally organised industrial action would no longer be putting their immigration status at risk. The previous position meant that where sponsored migrants took part in strike action, this amounted to an unauthorised absence – the implication was that where the sponsored migrant was absent from work for more than 10 consecutive days due to taking part in a strike, their sponsoring employer was required to report this to the Home Office and terminate sponsorship. The new changes means that those who take part in legally organised strike similar to that of the University and College Union in February and March 2018 will have their immigration status protected, which is separate to employment law.
In 2017, there were 2 cases which were being heard in the courts as to whether individuals living in the UK under the Turkish Businessperson route were eligible to apply for Indefinite Leave to Remain (“ILR” or settlement) under the “standstill clause” after 4 years. Ultimately, it was decided that the “standstill clause” did not apply to ILR applications for Turkish Businesspersons and the Home Secretary altered guidance to this effect for applications submitted on/after 16 March 2018.
However, in July 2018 the Home Secretary amended the rules, allowing individuals under the Turkish Businessperson route to apply for ILR after 5 years, and for the first time, Turkish Workers could also apply for ILR after 5 years.
New UK Visa and Citizenship Application Service (UKVCAS)
Many applications to the Home Office are being phased to online only applications, with the latest date paper application forms can still be used for some types of application being 4 January 2019.
To coincide with this, UK Visas and Immigration (UKVI) partnered up with Sopra Steria and from 2 November 2018 and introduced the “new system” allowing applicants to attend UKVCAS sites instead of sending their original supporting documents to UKVI, as was the case under the “old system”. The premise is that this brings applications in-line with the digital age, and allow applicants to retains the original documents whilst their applications are pending with UKVI.
Having reflected on some of the key changes in 2018, looking forwards we can be sure that there will continue to be a number of changes made to the UK immigration system.
In October 2018, we posted the article “Can UK employers continue to recruit EU citizens after Brexit?”. This was before the draft Withdrawal Agreement was “brought back” to Parliament in November 2018. The House of Commons was due to have a “meaningful vote” on this on 11 December 2018, though this is now scheduled to take place in the week commencing 14 January 2019.
In the event of the current draft Withdrawal Agreement being approved by Parliament without amendments, we can expect that the contents of our October 2018 article will largely still ring true such as EU citizens needing to apply for status under the EU Settlement Scheme by 30 June 2021, if the transition period ends on 31 December 2020.
In the event of a “no-deal” situation, the UK Government’s position has changed, and as at 6 December 2018, EU citizens will need to be resident in the UK by 29 March 2019 to preserve their position and would need to apply to “convert” their status by 31 December 2020. However, there appears to be no position as to EU citizens who wish to come to the UK between 30 March 2019 and 31 December 2020. It is expected that current EU laws will be converted and preserved into UK laws following Brexit under the European Union (Withdrawal) Act 2018, meaning EU Free Movement would continue in the interim, until such time as the UK laws governing this are amended.
Immigration Health Surcharge (IHS)
The IHS is paid in addition to most application fees to allow migrants to use the NHS. The IHS is set to double from £200 to £400 (in most instances) per person per year, and the IHS increase is due to take effect from 8 January 2019.
Online Right to Work checks
On 13 December 2018, the Immigration Minister published a Written Statement relating to changes to the current Right to Work checks. From 29 January 2019, UK employers will be able to rely on online Right Work checks to establish a Statutory Excuse against a Civil Penalty for Illegal Working.
Expected changes to the Tier 1 visa category
On 6 December 2018, the Home Office was apparently suspending the Tier 1 (Investor) visa route with near-immediate effect. However, on 11 December 2018 the Home Office confirmed that this route “is not currently suspended”. Our Vincent Chung posted an article discussing this and about the expected changes to the Tier 1 visa category, and changes to the Tier 1 (Exceptional Talent) visa category details of which are set out in the most recent Statement of Changes to the Immigration Rules. Details of the reformation to the Tier 1 (Investor) visa route, and the replacement of the Tier 1 (Entrepreneur) category by an “Innovator” visa and of the Tier 1 (Graduate Entrepreneur) category by a "Start-Up" visa are also expected by around April 2019.
Immigration White Paper
With the delay of this document by more than 1 year, the highly anticipated paper was published on 19 December 2018. This 168-paged document sets out plans for a post-Brexit UK immigration system, which "will be a system where it is workers' skills that matter, not which country they come from", and very much signals the end of EU Free Movement. In effect, the new UK immigration system will apply uniformly to non-EU citizens and EU citizens alike.
It is likely that this new UK immigration system will come into effect in phases from late 2020, as the Brexit transition period comes to an end. Over the next 12 months, the Home Office will engage with stakeholders to develop the new system and provide further details in due course.
In terms of what this will mean for sponsored workers, and sponsoring employers, the paper sets out its proposal for the new system such as:
- the Home Office will scrap the current 20,700 annual limit as mentioned above for sponsored workers
- the current Resident Labour Market Test, which most Tier 2 sponsor licence holders will be familiar with, will also be scrapped in the new immigration system
- the Home Office will review the administrative burdens on the current sponsor licence system, and may introduce a "tiered" system of sponsorship
- the new system will be widened to include jobs skilled at A level or equivalent (the current system generally requires jobs to be skilled at graduate level or above), though not for migrants coming on the "Intra-company Transfer" basis
- the current minimum salary requirement of £30,000 as mentioned above will be put to a consultation, and it is expected that stakeholders will push for the reduction of this figure
- there is scope for "lower" skilled workers, from certain countries, being able to work in the UK on a temporary basis for up to 12 months, on a transitional basis until around 2025, to allow UK employers to adapt to the loss of access to the EU labour market. These workers would then be subject to a 12 month "cooling-off" period
Broadly speaking, there will be no change to the student route, though the Home Office intends that under the new immigration system, successful undergraduate migrants will be able to stay in the UK for 6 months after completing their studies - presumably to obtain gainful employment.
There are also other proposed changes such as requiring prior digital authorisation before individuals come to the UK, similar to the "ESTA" system adopted by the USA, and making more favourable immigration provisions specific to certain nationalities depending on trade deal agreements."
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Published: 21 December 2018
Article Sections: Immigration