With the Brexit situation remaining uncertain, we explore developments in relation to the settlement scheme for EU workers, Tier 2 and the UK's future immigration system, including comments made by Boris Johnson since he became Prime Minister.


EU Settlement Scheme update 

The EU Settlement Scheme has been introduced so that EU, EEA and Swiss citizens can apply, for free, to secure their future residence in the UK after 30 June 2021.

To date, over 1 million EU nationals have applied under the Scheme. Applications for settled or pre-settled status are now open until 30 June 2021, or 31 December 2020 in the event of a "no-deal" Brexit (based on the Government's current stated position). For more information about the EU Settlement Scheme, please see our previous articles regarding the EU Settlement Scheme and the relevant updates

The EU Settlement Scheme has faced criticism, with the Home Affairs Committee expressing concerns that the design of the scheme excludes some EU citizens and risks a repeat of the Windrush scandal for vulnerable citizens missing the deadline and calling for the scheme to instead operate as a means of obtaining confirmation of an individual's status as opposed to a time restricted opportunity to guarantee rights.  

In response to the general consensus of critics - that vulnerable applications will need support – the Home Office has published a list of 57 UK charities/voluntary organisations that can offer support to those applying to the scheme. 

Frontier Workers

One group of workers exempt from applying under the EU Settlement Scheme are frontier workers.

A frontier worker is an EU, EEA or Swiss citizen who lives outside of the UK but regularly commutes to the UK due to being employed or self-employed here.

The Home Office has published guidance clarifying that, if the UK leaves the EU with a deal, frontier workers can continue working in the UK with the rights they presently enjoy as set out below should they be temporarily not working, until 31 December 2020 and that thereafter, any frontier worker operating as such by 31 December 2020 can apply for a frontier worker permit to work in the UK after that date. 

In the event of a "no-deal" Brexit, a frontier worker can similarly continue working in the UK, with the rights set out below should they temporarily not be working, until 31 December 2020. After free movement has ended, current proposals are that frontier workers can continue to work in the UK for up to three months at a time without the need to obtain a visa.

After 31 December 2020, frontier workers can continue to work in the UK if they began to operate as a frontier worker prior to that date. However, as with the guidance that applies if the UK leaves the EU with a deal, the worker would need to apply for frontier worker status.

The guidance further covers the circumstances in which a frontier worker can retain that status even if they are not working. The circumstances include where a frontier worker:

  • is temporarily unable to work due to illness or accident;
  • has been working for more than a year but is now involuntarily unemployed and registered as a jobseeker;
  • has completed a fixed-term employment contract of less than a year and is now involuntarily unemployed and registered as a jobseeker;
  • has become involuntarily unemployed during the first 12 months of work and is now registered as a jobseeker;
  • is in vocational training whilst involuntarily unemployed;
  • is in vocational training whilst unemployed, and the training is related to the work carried out in the worker's previous work;
  • is temporarily unable to work due to being in the late stages of pregnancy; and
  • is on maternity or paternity leave, and will return to their previous employment, or find another job, at the end of this period.

This guidance will be particularly relevant to businesses employing EU, EEA and Swiss citizens that continue to live overseas and commute to the UK. 

Migration Advisory Committee Reviews

Salary threshold review

When the government published its White Paper in December 2018 on the UK's future skills-based immigration system, the paper demonstrated a continued commitment to minimum salary thresholds in respect of skilled workers as a means of helping to "control migration, ensuring that it is reduced to sustainable levels, whilst ensuring we can attract the talented people we need for the UK to continue to prosper". 

Currently, the minimum salary threshold sits at £30,000 for Tier 2 (General) migrants coming to the UK from non-EU countries such that only those individuals with an annual salary of £30,000 and above can come to the UK from non-EU countries. This is subject to exemptions such as for public service occupations including some in the medical and teaching professions and for new entrants under the age of 26. When free movement comes to an end and the new skilled worker route is in force post-Brexit, the minimum salary threshold would extend to workers coming from EU countries, too.

The threshold has been criticised as being too high for those based out of London or for certain occupations.

Sajid Javid MP therefore commissioned Professor Alan Manning and the wider Migration Advisory Committee (MAC) to engage with businesses, employers and other stakeholders over the next 12 months with a view to determining where the threshold should be set. 

MAC's remit encourages stakeholder engagement and, as such, gives businesses an opportunity to put forward evidence of the roles for, and regions from, which they hire and the resultant impact of imposing the £30,000 threshold.

Australian-style points-based system review

The Prime Minister, Boris Johnson, has expressed the opinion that our immigration system must change and has stated that he will be asking the MAC to conduct a review of the Australian-style points-based system as the first step in a "radical rewriting of our immigration system". The new Home Secretary, Priti Patel, has also confirmed that she will be looking at the elements of the Australian system which could be beneficial to the UK immigration system. 

An Australian-style points-based system would move away from the UK's current 'employer-driven' system which requires a migrant to find an employer who will sponsor them to fill a specific vacancy. The Australian-style system does not require employer sponsorship, although applicants can earn points for work experience which they may have gained whilst working in Australia on an employer sponsored visa. Instead, applicants are scored points for certain characteristics e.g. their age, English language skills, educational qualifications etc.  

The UK previously had a route which was similar to the Australian system, being the Tier 1 (General) category. This category did not require migrants to have a sponsoring employer and enabled highly-skilled people to be employed or self-employed in the UK. This category was closed in April 2018, however it would appear that the Prime Minister is considering what the best type of immigration system is for the UK, which could mean that we see new categories similar to Tier 1 (General) in the future. The new Home Secretary has indicated that deal, or no-deal, we can expect changes to the system. 

This article was drafted by Rachel Flavell, Trainee Solicitor and Natalie McManus, Associate.

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Natalie McManus

Natalie McManus

Associate, Employment
London

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