Out-Law News 3 min. read

'Mixed welcome' likely for post-Brexit immigration proposals

UK government-commissioned plans for immigration law after Brexit will receive a mixed welcome from businesses, an expert has said.

Recommendations by the Migration Advisory Committee (MAC) to abolish the Tier 2 cap on skilled migrants and either abolish or reduce the scope of the Resident Labour Market Test will be well-received, according to immigration law expert Euan Smith of Pinsent Masons, the law firm behind Out-Law.com. However, the lack of sector specific schemes in the MAC report plus the likely retention of minimum salary requirements would give causes for concern, he said.

The MAC provides the government with independent advice on migration issues. It was commissioned by the government in July 2017 to "advise on the economic and social impacts of the UK's exit from the EU and also on how the UK's immigration system should be aligned with a modern industrial strategy", and its latest report is a response to that commission.

The recommendations in the report are intended to apply from the end of the proposed post-Brexit implementation period on 31 December 2020, when it is anticipated that the right to free movement for EEA workers to and from the UK will end. They are based on the assumption that separate provision for UK immigration policy is not included in the UK's final agreement with the EU, and include moving to a system in which all migration is managed with no preferential access for EEA citizens.

The MAC recommends that immigration for higher-skilled workers should be less restrictive than for lower-skilled workers, a recommendation which it said "aligns with the government's industrial strategy". Higher-skilled workers "tend to have higher earnings so make a more positive contribution to the public finances", and would have more of a positive impact on the labour market, productivity and innovation.

The report envisages that, from the end of 2020, EEA and non-EEA immigration would be managed under the same set of immigration rules. The MAC recommends that the Tier 2 (General) route be reformed to cover medium-skilled as well as high-skilled jobs; to abolish or increase the number of exemptions under the Resident Labour Market Test; and to abolish the annual cap on migrants. However, the £30,000 salary threshold should be retained.

The Immigration Skills Charge on foreign workers should be retained, and extended to cover EEA workers, according to the report. The charge is currently £1,000 per worker, although lower charges and exemptions apply for workers in certain roles. The MAC does recommend a "full evaluation" of the impacts and level of the charge, now that it has been in operation for a few years, but recommends that it remain a flat rate so that it is lower in percentage terms for higher-paid workers.

The MAC does not recommend the introduction of any sector-specific work-related schemes for lower-skilled workers, with the possible exception of a seasonal agricultural workers scheme. Should the government choose to introduce a low-skilled immigration route, this should instead be based on an extended youth mobility scheme. The MAC does, however, note the potential impact this would have on the social care sector, which it said "needs a policy wider than just migration policy to fix its many problems".

Although the future direction of UK immigration policy is a matter for the government, the MAC's report was an important one as "to date, the government has tended to follow its recommendations in making changes to the immigration system", said Euan Smith of Pinsent Masons.

"Until now, the information that has been provided to employers in relation what will happen after the end of the transition period on 31 December 2020 has, frustratingly, been extremely limited," he said.

"The proposals to abolish the Tier 2 cap and either abolish or reduce the scope of the Resident Labour Market Test will be well-received. The proposed extension of roles that can be sponsored under Tier 2 to RQF level 3 medium-skilled roles may be helpful for some employers: this could potentially include, for example, aircraft maintenance engineers, electricians and brick layers. What will not be welcome, however, is the likely need for those in such roles to be paid at least £30,000 a year and the need to pay full immigration fees, including the Immigration Skills Charge," he said.

"The biggest concern for employers who rely on lower-skilled EEA workers is the MAC recommendation that there should be no specific sector-based schemes, with the exception of the seasonal agricultural workers scheme. The only helpful suggestion being that the current Youth Mobility Scheme could be extended to EEA countries, to enable young workers to come and fill these roles for a limited period," he said.

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