Brexit and the UK’s future immigration system

The spectre of crashing out of the EU without a deal is sending jitters across the UK. Events have clearly shown that holding a snap poll on immigration failed to do justice to the true merits of EU membership. Last month the government shed further light on the post-Brexit immigration landscape by revealing its White Paper entitled The UK’s future skills-based immigration system. Theresa May and Sajid Javid are adamant that their new plan will be instrumental in delivering Brexit and answering “the call of the British people.” Despite all her political troubles, leaving the EU is May’s dream come true because she can finally tinker with the system and reduce net migration to the tens of thousands, a manifesto pledge that she failed to achieve during her lengthy reign of terror as Home Secretary. May and Javid appear to be very pleased in their respective forwards that unrestricted EU immigration will end in the years to come. Javid presents himself as one of five deprived children of a Pakistani bus driver and his seamstress wife. He holds himself out as a man of the people but he used to be a former managing director of Deutsche Bank, one of the most corrupt banks in the world which preys on the poor and the unsuspecting. Unsurprisingly, the future immigration system will cater to the rich. In addition to his very extreme political beliefs, his lack of experience in the field makes him a very questionable candidate for steering the UK’s future immigration policy.

In a headline-grabbing move, he declared a “major incident” over just a handful of people crossing the English Channel. By making a really big deal out of it, he ramped up his xenophobic rhetoric to demonise refugees. Divided into over a dozen chapters, his White Paper targets various areas such as workers, visitors, students and family migration. The proposals are very heavily dependent on the findings of the Migration Advisory Committee (MAC). The MAC will play a more enhanced role in future times. Mrs May’s introductory comments coincide with her usual anti-immigrant point of view. Chronically low levels of confidence in her crumbling premiership have not prevented her from bragging about a single system focusing on attracting the brightest and best. By ending free movement, the new system will reward “workers’ skills … not which country they come from.” Making permission to come to the UK mandatory for EU citizens is being pushed as a colossal benefit for the safety and security of the British people. The deadline for the EU Settlement Scheme has been set as June 2021. Therefore EU citizens and their family members who do not apply to stay in the UK by the “grace period” ending on 30 June 2021 will not be in a position to demonstrate their rights to access work, benefits and services.

Some analysis of the White Paper follows below. The new system will be rolled out in a phased manner between now and 31 December 2020 or the end of the implementation period.

The end of two systems

Chapter 1 of the White Paper sets the stage by stressing that the parallel systems of immigration for EU nationals and the rest of world will come to an end and the coverage provided to EU nationals and their family members will come to an end because the Citizens’ Directive (2004/38/EC) and the connected domestic UK regulations will cease to apply.

Javid has also presented to Parliament the Immigration and Social Security Co-ordination (EU Withdrawal) Bill which makes provision to end free movement rights under retained EU law and to repeal other retained EU law relating to immigration. Clause 1 and Schedule 1, paragraph 1, of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill repeals section 7 of the Immigration Act 1988 with the result that EU nationals and their non-EU family members will require permission to enter and remain in the UK under the Immigration Act 1971. The UK will embrace a uniform system of immigration control but greater resources will be needed to closely monitor the movements of the hundreds of millions of people from the EU who can presently enter the UK and make it their home with the minimum of formalities.

The details of the future immigration arrangements (i.e. the precise rules to be met to come to the UK as a worker, student, family member and so forth) will be set out in the Immigration Rules, as they are now for non-EU nationals.

The rules for EU nationals will be finalised taking account of evidence, including from the MAC as well as stakeholder views. The rules may be the same as those for non-EU nationals, or they may be different.

Sponsored workers

The government is depicting the UK’s “liberation” from free movement as creating space for people wanting to work in the UK who were previously blockaded from entering because of the limit on Tier 2 (General) certificates of sponsorship. The totally haphazard and unpredictable way in which the rigid system presently operates will be reformed. For example the monthly allocations of so-called restricted certificates of sponsorship will cease once the law of free movement ceases to apply in the UK. Substantial changes will be made to the present system and the Tier 2 monthly panel will be removed to make way for continuous processing of visas throughout the year without the undue delay caused by the cyclical nature of the monthly allocation procedure.

The future system will create a single route offering access to highly skilled and skilled workers from all countries. The complex and kaleidoscopic system used for sponsorship at the present time will be relaxed and the cap on the numbers of skilled workers (presently 20,700) will end. A reformed new route said to aid a flexible labour market and support businesses will come into existence and employers of skilled migrants will no longer need to carry out a Resident Labour Market Test (RLMT) as a condition of sponsoring a worker. MAC found that the RLMT was a cause of delay and it did not serve the intended purpose of stopping downward pressure on wages since protection is provided by payment of the Immigration Skills Charge (ISC) by employers. The flexibility and simplicity lost by the end of free movement needs to be compensated so the future system for employing foreign workers will be more streamlined and simpler to operate.

The White Paper states that the great majority of work visas will be processed in a matter of two to three weeks. Labour market flexibility will be supported by permitting nationals of the lowest risk countries to apply for a work visa in the UK and the new skilled route will include workers with intermediate level skills, at RQF 3-5 level (A level or equivalent) as well as graduate and post-graduate.

The minimum salary threshold will be £30,000 and more discussions will be held with businesses and employers as to the precise salary threshold that should be set. Notably, the cabinet is split over the £30,000 salary threshold. MAC is also going to review the Shortage Occupation List (SOL), including for occupations at RQF levels 3-5 and it will report back with its findings in spring 2019. Attempting to use Tier 2 as a silver bullet to fix everything is a huge new experiment that may come with hidden problems that will only become clear once the new system is fully functional.

Short-term and other workers

In relation to unskilled workers from the EU, we are informed that a 12-month visa will be operated but without any entitlement to access public funds or rights to extend a stay, switch to other routes, bring dependants or lead to permanent settlement. MAC did not advise the government to open up a dedicated route for unskilled labour and so such a route will not be created. The reason provided is that lower skilled migrant labour depresses wages and stifles innovation in the UK economy. Thus, the government looks upon the end of free movement as a “unique opportunity” to redesign the immigration system to give priority to those who contribute the most to the UK’s economy and society.

But in order to plug in the gaps during the transitional period after the UK’s exit from the EU, there will be a new route for temporary short-term workers at any skill level to come to work in the UK. Such workers will require a visa and the Home Office will set certain restrictions on nationalities, duration and also numbers on this “tightly defined” route (which will be subject to a cooling off period of a further twelve months to stop long-term working). Exploitation and abuse of the workers using the route will be monitored and the system will operate a regime of penalties, sanctions and data-matching. The route will endure until 2025 and stakeholders such as businesses and local communities will be consulted and MAC will review events to make further findings.

The position on seasonal agricultural workers is that the government and MAC concur that despite the challenges confronting the agricultural industry an easy option for the agricultural sector must not sacrifice proper monitoring of conditions of employment to avoid exploitation of workers. Overall, any seasonal scheme for agricultural workers will be temporary. However, other categories such as artists, professional sports persons, entertainers, talented scientists and researchers will enjoy improved routes into the UK.

The Tier 1 (Graduate Entrepreneur) route will be replaced by the Tier 1 (Start-Up) category. The new visa will be launched in spring 2019. All business people, and not just recent graduates, will be able to apply in this category after getting endorsement from a university or an approved business sponsor. And further expansion of the Tier 1 (Exceptional Talent) space is on the cards once Brexit becomes the order of the day.

Approximately 20,000 visas were granted under Youth Mobility Schemes (YMS) from September 2017–September 2018. The UK currently operates reciprocal youth mobility arrangements Australia, Canada, Hong Kong, Japan, Monaco, New Zealand, South Korea and Taiwan. Around 59,000 places were available in 2018.

These YMS allow people aged 18-30 to come to the UK for two years, during which period they can work or study. Although entrants are not obliged to work, they may acquire highly skilled work – even though the evidence shows that most employment in this cohort is low skilled. The White Paper proposes a UK-EU wide reciprocal YMS which will plug in the gaps in UK labour market.

Visas for trade deals

The White Paper points out that as and when the UK agrees trade deals more favourable provision for specific nationalities will be made by changes to the Immigration Rules.

Thus, the future rules for EU nationals and others will be alike unless the latter category is provided more generous treatment owing to a trade deal.

The Home Office is also proposing to expand, on a reciprocal basis, the current range of “GATS Mode 4” commitments that have been made as part of EU trade deals.

The General Agreement on Trade in Services (GATS) is a treaty of the World Trade Organisation (WTO) covering four modes of cross-border supply of services. Moreover, Mode 4 concerns the supply of a service by one member, through presence of natural persons of a member in the territory of another member.

The GATS does not apply to measures affecting access to the employment market of a member or to measures regarding citizenship, residence or employment on a permanent basis.

Therefore, the expansion may cover independent professionals, intra company transfers, business visitors and contractual service suppliers. In order to support businesses and tourism, the UK is seeking to negotiate with the EU a Mobility Framework as a part of which the government will seek to negotiate with the EU reciprocal provisions for short-term business visitors arriving after the end of the implementation period. In due course, similar arrangements could be made available to other countries with whom the UK concludes trade deals, which may go beyond what is currently allowed in the visitor rules. Overall, the White Paper states that the future Immigration Rules can be adapted to take account of any future trade arrangements with other countries.

Harmonisation of criminality

The Home Office explains that the opportunity of exiting the EU will come with the advantage of creating space for a single, consistent approach to criminality across the immigration system. On the existing situation EU citizens are subject to different thresholds of criminality than those for non-EU nationals.

Under the Citizens’ Directive and the transposing regulations, a criminal from the UK can only be deported from the UK if his conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

Those in possession of the right of permanent residence can only be expelled on serious grounds of public security Moreover, imperative grounds of public policy or public security are required to expel those who have resided in the host member state for the previous ten years. In Vomero (C-424/16, EU:C:2018:256, see here), the CJEU held that permanent residence is a mandatory prerequisite of eligibility for enhanced protection.

Whereas the current UK deportation rules for non-EU citizens are more stricter and more specific, the EU regime does not specify the length of imprisonment or the behaviour which may result in the refusal of entry, exclusion or deportation of an EU citizen from the UK. The test for deportation in EU law is such that even a person with a very appalling criminal record (subject to successful rehabilitation of course) can quite easily overpower the Home Office in deportation matters. Therefore the government is quite delighted that immediately after the implementation period EU citizens and their non-EU family members who breach criminal law in the UK will be considered for deportation under the same criteria currently applying to non-EU nationals. The two parallel regimes in criminal deportation cases will be harmonised and non-EU criminality criteria will be extended to EU citizens so as to “ensure equal treatment of EU and non-EU citizens.”

Departure from the existing hierarchy of protection conferred by the Directive will fully expose of EU citizens to automatic deportation under the UK Borders Act 2007 which only requires a single conviction of 12 months’ imprisonment for a foreign criminal to be expelled. The future deportation regime for EU nationals will also fully expose them to Part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended) which makes provision for public interest considerations under article 8 of the ECHR. The mechanics of Part 5A and the Immigration Rules do not at present apply directly to EU nationals notwithstanding the fact article 8 applies equally to everyone irrespective of nationality.

Family migration

Under the Immigration Rules, the Minimum Income Requirements (MIR) impose a gross annual income of £18,600 to sponsor a partner and require additional requirements of £3,800 for the first child and £2,400 for each child thereafter.

In MM (Lebanon) & Ors [2017] UKSC 10, the Supreme Court held that the MIR produce “a particularly harsh effect” but were acceptable in principle because of the ECtHR’s ruling in Konstatinov v Netherlands [2007] ECHR 336.

The MIR applies to British citizens, settled migrants, refugees and those granted humanitarian protection aiming to sponsor a post-flight partner and dependent child or children. The MIR does not presently apply to EU nationals exercising their free movement rights.

Leaving the EU will also mean that everyone including EU citizens, who is settled in the UK and wants to bring their family members to live with them must satisfy the UK’s family Immigration Rules. In other words, Appendix FM and its sinister siblings will apply in a freewheeling kind of way all across the board to everyone. Even more people will face the misery created by Theresa May’s cruel rules and there will be more Skype kids and parents than before. Yet rather than accepting these ugly realities, the White Paper insists that the family rules are operated to minimise burdens on the taxpayer, promote integration in UK communities and tackle immigration abuse.

The repeal of section 7 of the Immigration Act 1988 will also mean that those EU nationals without indefinite leave to remain will have a precarious status within the meaning of section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (as amended) and the Supreme Court’s ruling in Rhuppiah [2018] UKSC 58 (discussed here).

LIUK test  

The White Paper sets out that the forthcoming Integrated Communities Action Plan will refresh the Life in the UK test. It states in terms that the changes will better reflect modern British values and the language requirements for those seeking to become British citizens will be strengthened. The last review of the LIUK test was conducted in 2012 and Sajid Javid has made it his hobbyhorse to improve the existing LIUK test because he perceives it to be a “bad pub quiz”.

Digital delivery

Building on the digital delivery of the EU Settlement Scheme, the future system will also operate digitally. The speed at which the system will operate is a strong reason to pursue digital delivery and increase efficiency. This is an ambitious aim because the White Paper states that the costs and benefits of these proposals have not as yet been quantified.


The White Paper came under attack from numerous organisations.

For example, the Immigration Law Practitioners’ Association (ILPA) quickly denounced it as a highly opportunistic way to create a playground to “attract richest migrants, highest earners and create a set of parallel rules for numerous types of migrants, dependent upon the trade deals struck in a post-Brexit world.”

An issue of critical importance is that the White Paper does not address the key fact that the proposed £30,000 per annum salary is not capable of “responding to shortages in primary and secondary teaching and nursing at the junior end” because salaries are significantly lower than that threshold.

The Confederation of British Industry (CBI) also excoriated the government’s proposals because of their failure to support the economy and command public confidence. The CBI, which is the voice of business, has made it clear to the government that immigration is valuable to all sectors of the UK economy and delivers significant economic benefit.

The CBI pointed out that the construction and healthcare industries have been neglected by the proposals which do no address the UK’s true immigration needs and “would be a sucker punch for many firms right across the country” because the government knows very well that “people and regions will be poorer” as a consequence.

In the Open and controlled: A new approach to immigration after Brexit report, the CBI advocated the case for easy access to people and skills because this is a high priority for business. The CBI seems to be frustrated that the White Paper does not replace free movement with a new, open and controlled immigration system for EU citizens.

The digital delivery of immigration permits will inevitably open up a new can of worms because permit holders will only have a number to prove their entitlements. This will mean that landlords in the hostile environment will refuse to rent housing to those who cannot produce a physical document proving their rights. The same of course will be true of employers. Windrush has already demonstrated in emphatic terms that persons who are entitled to remain in the UK are quickly shunned by society if they cannot produce hard copy documents to prove their status. The National Audit Office found that the Home Office handled the Windrush situation extremely poorly and that it has still not established the full extent of the problems affecting people of Windrush generation.

The White Paper is replete with references about how the UK is at the forefront of the defending human rights of the vulnerable and those fleeing persecution. While the government is eager to create a false impression about its protection of refugees and vulnerable persons, the truth is all too apparent from the vile manner in which Sajid Javid has been attacking the handful of people who have arrived in the UK from France in small inflatable boats.

Since 2010, May’s constant immigrant bashing has contributed hugely towards swinging public opinion in favour of Brexit. Perhaps if she and David Cameron had not attacked immigrants by the creation of the hostile environment, then fewer people would have voted to leave the EU in the referendum and all the ongoing wasteful realignment of affairs would not have been necessary.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Brexit, Citizens Directive, CJEU, ECHR, European Union, Immigration Rules, Politics, Tier 1, Tier 2, UKSC, Windrush, Working and tagged , , , , , , , , , , , . Bookmark the permalink.

2 Responses to Brexit and the UK’s future immigration system

  1. EU citizens in the UK in a ‘no deal’ scenario
    7. We have always been clear that we highly value the contributions EU citizens make to the social, economic and cultural fabric of the UK and that we want them to stay in the UK. To remove any ambiguity, the UK Government guarantees that EU citizens resident in the UK by 29 March 2019 will be able to stay and we will take the necessary steps to protect their rights even in a unlikely ‘no deal’ scenario.
    8. To achieve this, the UK will continue to run the EU Settlement Scheme for those resident in the UK by 29 March 2019 in a ‘no deal’ scenario. The basis for qualifying for status under the scheme will remain the same as proposed in a ‘deal’ scenario and will be focused on residence in the UK. This means that any EU citizen living in the UK by 29 March 2019 will be eligible to apply to this scheme, securing their status in UK law.
    9. The application system will continue to be streamlined and user-friendly, and will continue to draw on existing government data, to minimise the burden on applicants to provide evidence of their residence. Throughout, the Home Office will be looking to grant status, not for reasons to refuse. Those here by 29 March 2019 will have until 31 December 2020 to apply for status under the scheme. Until this time, EU citizens will continue to be able to rely on their passport (as a British citizen may) or national identity card if they are asked to evidence their right to reside in the UK when, for example, applying for a job, as they do currently.
    10. The UK will continue to honour the right of those who obtain settled status under the scheme to be able to leave the country for up to five consecutive years without losing their right to return. We are making the commitment that, once granted, status under the scheme is secure. More information on the EU Settlement Scheme can be found by following the links under the ‘further information’ section of this paper.
    11. However, in a ‘no deal’ scenario there would be some necessary changes:
    ● As there would be no agreed implementation period, this guarantee would
    only apply to EU citizens who are resident in the UK by 29 March 2019.
    ● As there would be no agreed implementation period, those EU citizens and their family members resident here by 29 March 2019 would have until 31 December 2020 to apply for a status under the EU Settlement Scheme, but with no six-month ‘grace period’ beyond this. The new UK immigration system would be implemented from 1 January 2021 as planned.
    ● EU citizens would have the right to challenge a refusal of UK immigration status under the EU Settlement Scheme by way of administrative review and judicial review, in line with the remedies generally available to non-EEA nationals refused leave to remain in the UK. There would be no preliminary reference procedure to the Court of Justice of the European Union, as it would not have any jurisdiction in the UK.
    ● The EU deportation threshold would continue to apply to crimes committed before exit. However, we would apply the UK deportation threshold to crimes committed after 29 March 2019.
    12. EU citizens with settled status would be able to be joined in the UK, by 29 March 2022, by existing close family members, such as children, spouses and partners, parents and grandparents living overseas at exit, where the relationship existed by 29 March 2019 (or where a child was born overseas after this date) and continued to exist when the family member applied. After 29 March 2022, such family members will be able to join EU citizens here by applying through the applicable UK Immigration Rules. EU citizens with settled status will be able to be joined by future spouses and partners (where the relationship was established after exit) and other dependent relatives until 31 December 2020, after which point the UK Immigration Rules would apply to such family reunion. Together this would bring the rights of EU citizens in line with the rights of UK nationals from 30 March 2022.
    13. EU identity cards would remain valid for travel to the UK initially. Although there would be no immediate change, as we introduce the new UK immigration system from 1 January 2021, we would no longer guarantee that EU citizens will be able to use a national identity card to enter the UK. This would support the Home Office’s attempts to streamline border processes and better secure our borders.
    14. We will also protect the rights of EU citizens who currently live in another state but travel regularly to and from the UK because they are employed or self-employed here, known as ‘frontier workers’. Many of this cohort will spend enough time in the UK to qualify for status under the EU Settlement Scheme. Otherwise, they will be able to obtain a separate UK immigration status which will allow them to continue frontier working into the UK after exit.



    EU citizens in the UK and a ‘no-deal’ Brexit

    The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 received its Second Reading on 28 January and has passed into Committee stage. On the same day, the Secretary of State for the Home Office, Sajid Javid, announced a new ‘European Temporary Leave to Remain in the UK’ as part of the Government’s no-deal Brexit planning.

    The Government plans to implement the Immigration Bill and end free movement from 30 March 2019 in the event of a no-deal Brexit. This means that for the most part, EU citizens and their family members who come to the UK from 30 March 2019 will require immigration permission to enter the UK. The Government and the Home Office will need rules in place to grant immigration leave to enter and remain to EU citizens.

    However the Government has stated that the new immigration rules, as set out in the White Paper, will “take some time to implement.” This means there will be a gap in immigration law and policy between the end of free movement and the implementation of the new immigration rules for EU citizens. To fill this gap, the Home Office has announced it will implement the new ‘European Temporary Leave to Remain in the UK,’ subject to parliamentary approval.

    The main features of European Temporary Leave to Remain
    EU citizens (including EFTA citizens) will be able to enter the UK as they do now (i.e. without the need for a visa/immigration permission) for a period of up to three months. During this time EU citizens will have the right to work and study in the UK.

    EU citizens who wish to remain in the UK for more than the initial three months will need to apply for ‘European Temporary Leave’. The Home Office has explained that this will be done through an online application where the applicant will need to prove their identity and declare any criminal convictions. This sounds similar to the application process for ‘settled status’.

    European Temporary Leave will allow the holder to remain in the UK for 36 months from the date of their application. EU citizens with this type of leave will have the right to work and study in the UK. It will be temporary and cannot be extended, nor will it lead to settlement in the UK. Holders of this type of leave would be required to apply for further leave to remain under the UK’s new immigration rules when implemented in the future. As the Home Office explains: “there may be some who do not qualify under the new arrangements and who will need to leave the UK when their leave expires.”

    There will be an application fee and family permits will be required for non-EEA ‘close family members’. The Home Office explains in further detail:

    “European Temporary Leave to Remain will allow EEA citizens arriving in the UK after 29 March 2019 to live, work and study in the UK if there’s no Brexit deal.

    “EEA citizens who are granted European Temporary Leave to Remain will be able to stay in the UK for 36 months from the date of their application. European Temporary Leave to Remain will be a temporary, non-extendable immigration status. It will not give indefinite leave to remain (ILR), lead to status under the EU Settlement Scheme or make EEA citizens eligible to stay in the UK indefinitely. If EEA citizens want to stay in the UK for more than 36 months, they will need to apply for an immigration status under the new immigration system, which will come into effect from 1 January 2021. Those who do not qualify will need to leave the UK when their European Temporary Leave to Remain expires.”

    Those who don’t need to apply
    The following people will not be required to apply for European Temporary Leave:

    EU citizens and their family members with settled or pre-settled status.
    Irish citizens.
    Those who are a “serious or persistent criminal or a threat to national security” will not be eligible and the UK’s deportation threshold will apply.

    EU citizens can enter the UK with either their passport or a valid nationality identity card.

    The Home Office explains that employers and landlords conducting right to work and rent checks for EU citizens will not be required “to start distinguishing between EU citizens who were resident before exit and post-exit arrivals.” Until 2021, EU citizens can continue to rely on their passports or national identity cards.

    Settled status and no-deal
    The introduction of European Temporary Leave does not affect those eligible for the settled status scheme. EU citizens living in the UK prior to 29 March 2019 can still apply for settled status in a no-deal Brexit, as European Temporary Leave is a status for those who arrive after 29 March 2019. For more information on this, see the Library’s Insight ‘What does the Withdrawal Agreement say about citizens’ rights?’.

    The settled status scheme has completed its restricted pilot testing phases and is now open for applications from all eligible EU citizens. The Prime Minister Theresa May announced on 21 January 2019 that the £65 fee for settled status will be abolished. People who have already applied and paid the fee will be refunded.

    The Home Office has further stated that EEA citizens who arrive in the UK after 29 March 2019, but who had lived in the UK prior to 29 March 2019, will be eligible to apply for settled status. It is not clear what the specific eligibility requirements will be for people with these circumstances who wish to apply for settled status.

    Further reading

    The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19, House of Commons Library.

    The status of EU citizens in the UK after Brexit, House of Commons Library.

    What does the Withdrawal Agreement say about citizens’ rights? House of Commons Library.

    An employer’s guide to right to work checks, Home Office, 28 January 2019.

    Hannah Wilkins is an Immigration and Asylum Researcher at the House of Commons Library.

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