Katerina Woodcock: Comments on the Government’s recently published White Paper concerning EU migrant workers rights’ in the United Kingdom post Brexit

The Government has recently published a White Paper (the Report)[i] on the potential future relationship between the United Kingdom and the European Union, post Brexit, particularly with regard to EU workers’ rights to work in the UK once the Government brings to an end EU free-movement rights.

The current predictions for the date of the proposed roll out of the new ‘skills based immigration system’ is 30^th June 2021, to coincide with the deadline for European nationals and their family members who were resident in the UK prior to or during the transition period to hold ‘settled status’ or a pre-settled status in the UK. However, the Report itself, at paragraph 6.50, envisions this transitionary measure to become enforceable by 2025, subject to review.

Despite the concerns raised by UK businesses, the Report advises of an aim to bring EU workers within the existing Points Based System that applies to non-EU migrant workers, but slightly amended to take into account previously enjoyed free-movement rights. The recommendations, made by the Migration Advisory Committee, are as follows:

• Disregarding the overall cap on sponsored work visas, currently described as ‘Tier 2 (General)’ visa
• Lowering the skills threshold from level 6 (Bachelor Degree) to level 3 (A-level or International Baccalaureate)
• Abolishing the Resident Labour Market Test
• Reducing the administrative burden on sponsoring employers[ii]

The Government’s motivation behind this new single immigration route can be found at Chapter 6 of the Report as follows:

A new single immigration route for skilled workers, from RQF 3 to RQF 7 (post-graduate).

Workers in this route, from RQF 3 upwards, will need to be sponsored by their employer; employers will pay an immigration skills charge and individual migrants must pay a health charge, subject to any discussions with the EU about reciprocal health care. These charges ensure that those who are employing migrants are contributing to the skills budget, which helps to train resident workers, and that migrants are making a fair contribution to the National Health Service. In return, individuals will have entitlements to bring dependants (who may also work), extend their stay, remain permanently and access the National Health Services. They may only access non-contributory public funds if they become settled, after meeting relevant residence requirements[iii]

The Migration Advisory Committee has proposed that the minimum income requirement of £30,000 under Tier 2 (General) for non-EU nationals should be retained within the new Immigration System. Whether an individual has only A-level qualifications or a post-graduate bachelor’s degree, the applicant would have to meet the income requirement. Whether this requirement is agreed upon coming into force as a primary legislation, remains unclear.

In comparison, low skilled migrant workers who do not meet the qualifications or annual income criteria will in future be limited to a 12-month working visa, similar to the Australian immigration system. This will be “followed by a cooling off period of a further twelve months to prevent long-term working”.[iv] This visa, unlike the current exercise of European Treaty rights enjoyed by EU workers, will not come with the right to rely on the UK welfare system, bring family members, switch onto another visa or settle in the UK.

Although the detail of these proposed changes to the Immigration Rules will be discussed for some time in the House of Commons before any amendments are brought intro force under an Act of Parliament. It is clear the government are concentrating on bringing an end to the ‘low-skilled’ EU workers’ ability to work freely in the UK without being subject to taxing Immigration Rules that are currently imposed on non-EU nationals. Whether the House agrees such changes is subject to debate.

[i] Her Majesty’s Government: The UK’s Future Skills-Based Immigration System, December 2018 Available at : https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/766465/The-UKs-future-skills-based-immigration-system-print-ready.pdf

[ii]Home Secretary announces new skills-based immigration system, Home Office 19^th December 2018. Available at: https://www.gov.uk/government/news/home-secretary-announces-new-skills-based-immigration-system

[iii] Ibid .Her Majesty’s Government: The UK’s Future Skills-Based Immigration System, December 2018. Page 48

[iv] Ibid. Page 52