House of Commons Library publishes new briefing on the UK’s future immigration system

The House of Commons Library on Friday published a new briefing paper providing a helpful outline of the Government's current proposals for the future immigration system after Brexit.

You can download it here and we've reproduced it in full below for easy reference.

It provides a clear and concise overview of the Government's post-Brexit immigration plans, albeit with the proviso that those plans remain uncertain given the continuing uncertainty over the date of Brexit and the likelihood of a general election in the near future.

Indeed, the House of Commons Library explains in the briefing: "At time of writing most of the available information on the system are proposals only. Many of the details of the UK's future immigration system remain unknown. Some immigration arrangements may be influenced by trade deals between the UK and other countries."

The briefing paper notes that the post-Brexit immigration system will represent the biggest change to UK immigration law since the UK joined the EEC in 1973.

__________________________________

HOUSE OF COMMONS
LIBRARY

BRIEFING PAPER
Number CBP8711, 18 October 2019

The UK's future immigration system

By Melissa Macdonald

Contents:
1. Background
2. Immigration announcements under the Johnson government
3. Migration Advisory Committee
4. The Immigration White Paper
5. Annex: Example of an Australian points-based visa

www.parliament.uk/commons-library | intranet.parliament.uk/commons-library | papers@parliament.uk | @commonslibrary

Contents
Summary
1. Background
1.1 Why is immigration law changing?
1.2 A unified immigration system
1.3 How are changes made to the immigration system?
2. Immigration announcements under the Johnson government
2.1 The Queen's Speech 2019
2.2 'Vindaloo visas'
2.3 Post-study work
2.4 Global Talent visa
2.5 Net migration target dropped
2.6 Amnesty for "illegal immigrants"
2.7 Uncertainty over route for low skilled immigration
3. Migration Advisory Committee
3.1 Salary thresholds
3.2 Points-based immigration system
What is a points-based system?
What is the 'Australian points-based system'?
4. The Immigration White Paper
4.1 Workers
4.2 Visitors
4.3 Students
4.4 Family
4.5 Life in the UK test
4.6 Asylum
5. Annex: Example of an Australian points-based visa

Contributing Authors: Hannah Wilkins, immigration law and policy

Summary

The UK intends to end free movement of EEA citizens into the UK as it leaves the European Union. The Government is taking this opportunity to overhaul the UK's immigration system. The UK's immigration regime is going to change regardless of whether the UK agrees a deal with the EU or has a no-deal Brexit.

Before the new system is implemented there will be a time of transition, commencing after exit day, under both the Withdrawal Agreement or a no-deal Brexit. Free movement in the UK will essentially continue during transition in both a deal or no deal scenario.

After transition, everyone who comes to the UK under the future immigration system, regardless of whether they are from the EU, will be subject to the UK's immigration requirements. Under proposals for the future immigration system, citizens from the EU and the EEA will require a visa in most cases except short stays and tourism.

EU and EEA citizens who are granted status under the EU Settlement Scheme due to residence in the UK prior to Brexit will also be subject to the UK's immigration regime. This is because settled and pre-settled status are set out in UK domestic law via the immigration rules. However, the rights and benefits under the EUSS broadly mirror EU law rights. The position for arrivals under the future immigration system will be different, as EU and EEA citizens will be brought under the UK's stricter immigration policies.

The development of a new, post-Brexit immigration system constitutes the biggest change to UK immigration law since the UK acceded to the European Economic Community on 1 January 1973, 46 years ago. The Government has been consulting on these changes by commissioning reviews by the Migration Advisory Committee.

According to the Government they intend to implement the future immigration system from 1 January 2021.

At time of writing most of the available information on the system are proposals only. Many of the details of the UK's future immigration system remain unknown. Some immigration arrangements may be influenced by trade deals between the UK and other countries.

The proposals are subject to change.

In December 2018, the May Government published its White Paper 'The future skills-based immigration system' which set out proposals for the post-Brexit immigration system. The system proposed in the White Paper is based on the existing immigration rules which apply to non-EEA nationals, but with many changes

Whilst the Home Secretary, Priti Patel, has said the new Government will build on the White Paper, it is currently unclear to what extent their plans will deviate. [1]

On 6 September 2019 the Home Secretary commissioned the Migration Advisory Committee to explore the possibility of an "Australian style points-based system" in the UK.

This briefing paper provides an overview of some of the proposals for the future immigration system, including those outlined in the Immigration White Paper. Throughout this paper the term 'EEA citizen' is used to refer to citizens of the EU27, and the EEA countries of Iceland, Liechtenstein, and Norway, and of Switzerland.

1. Background

1.1 Why is immigration law changing?

There are two distinct immigration systems in the UK.

EU law of free movement regulates immigration of EU citizens to the UK. Free movement law is set out in EU Directive 2004/38/EU, as transposed into UK law by the European Immigration (European Economic Area) Regulations 2016.

Non-EEA nationals are regulated by UK domestic immigration law and the majority of this law is set out in the Immigration Rules. The Immigration Rules are administrative rules which are made by the Secretary of State for the Home Office under the power of section 3 of the Immigration Act 1971.

However, following the EU referendum result, Prime Minister Theresa May confirmed her intention to end freedom of movement in her Mansion House speech on 2 March 2018. [2] This would have the effect of ending preferential treatment of EU citizens within the UK's immigration system; an issue that was raised repeatedly by Vote Leave during the EU referendum. [3]

The May government, and the new Johnson government, have remained committed to ending free movement as soon as possible following the UK's departure from the EU. [4]

1.2 A unified immigration system

Instead of incorporating EEA nationals into the existing immigration system for non-EEA nationals, the Government has proposed an overhaul of the immigration system. The changes identified to date primarily focus on the work routes.

The original proposals for this system are set out in the Immigration White Paper 'The UK's future skills-based immigration system' published in December 2018. Fundamentally, the Government proposed a single, unified immigration system to apply to everyone who wants to come to the UK after Brexit. As the White Paper sets out, EEA nationals and non-EEA nationals will be subject to the same conditions in future:

There will no longer be one immigration system for non-Europeans, and another for EU citizens. The future system will apply in the same way to all nationalities – EU and non-EU citizens alike – except where there are objective grounds to differentiate. This could, for example, be in the context of a trade agreement, or on the basis of risk. [5]

It is currently unclear to what extent the Prime Minister and Home Secretary will deviate from the original White Paper proposals.

Writing for the Mail on Sunday 28 July, the Home Secretary Priti Patel stated:

We'll be able to prioritise the people who can and will add significant value to our country. To do this we will build on the proposals in our White Paper to create a fair new skills-based approach. [6]

The future immigration system may also be influenced by the mobility provisions in the political declaration on the future relationship between the UK and the EU. Trade deals between the UK and other countries may also contain immigration and visa agreements.

Box 1: EU migration to the UK before the implementation of the future immigration system How will free movement end? To implement a new immigration system for EEA citizens free movement must end in the UK. However, free movement will not automatically end on the UK's departure from the EU. The European Union (Withdrawal) Act 2018 repeals the European Communities Act 1972 on exit day and thereby ends the UK's membership of the EU. The Act also converts EU law into UK law (known as retained EU law) to "ensure continuity of law". Primary legislation is needed to enable the Government to repeal the retained EU law related to immigration, including free movement rules. This means that even after the UK leaves the EU, free movement will continue until legislation is passed to repeal it. To do this, the May Government introduced the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 which fell when Parliament was prorogued on 8 October 2019. The Government announced a new Immigration and Social Security Co-ordination (EU Withdrawal) Bill in the Queen's Speech on 14 October 2019. Further information is set out in this briefing in section 2.1 on the Queen's Speech. What will happen under a Brexit deal Under the Withdrawal Agreement free movement would continue until the end of the transition period. EEA citizens and their eligible family members could continue to move to the UK under free movement law until the future immigration system is implemented. Those who move to the UK after the future immigration system is implemented would need to meet any requirements for a visa under that system. The Government has said it intends to implement the future immigration system from 2021. To pave the way for the implementation of the future immigration system the Government would need to repeal free movement law in the UK via primary legislation. What will happen under a no-deal Brexit In the event of a no-deal Brexit free movement will essentially continue in the UK until 31 December 2020, with some changes. The Government has announced that it will create a temporary and voluntary immigration status for EEA citizens and their family members who move to the UK after exit day. This status is called European Temporary Leave to Remain or "Euro TLR". EEA nationals granted Euro TLR will be able to remain in the UK for 36 months from the date it is granted. At the end of the 36 months, they will be able to apply to remain under the new immigration system - if eligible. If they are not eligible, the Government has explained they would need to leave the UK. [7] Euro TLR will therefore effectively act as a 'stop gap' until the new immigration system is introduced. The Home Office is advertising Euro TLR as a "voluntary" status. [8] This means that until 31 December 2020 EU citizens and their eligible family members can enter and reside in the UK after Brexit without the requirement to apply for any immigration status at all. Nonetheless, Euro TLR can be used to demonstrate the right to live and work in the UK, and the time accrued can be used towards the qualifying period for settlement (indefinite leave to remain). [9] The application will be online, and applicants will need to prove their identity and declare any criminal convictions. [10] As with a Brexit deal scenario, primary legislation would be required to pave the way for the implementation of the future immigration system.

1.3 How are changes made to the immigration system?

The future immigration system (and Euro TLR if required) would be implemented through changes to the Immigration Rules.

As the Law Commission explains, the immigration system is built on a complex mix of primary and secondary legislation, rules, guidance and caselaw:

United Kingdom immigration law is comprised of a mass of primary and secondary legislation, lengthy Immigration Rules, and numerous and voluminous policy instructions and guidance documents. Many of these have been interpreted and developed by a substantial body of judicial rulings... [11]

…The statutory basis for the modern system of immigration control is principally in the Immigration Act 1971 ("the 1971 Act"), which came into force on 1 January 1973.

The 1971 Act contains very little detail about the requirements for entry and stay in the United Kingdom. Instead, it provides for rules to be laid down and amended by the Secretary of State as to the practice to be followed for regulating the entry and stay of persons not having the right of abode. These are known as the Immigration Rules. [12]

Under the negative resolution procedure an instrument becomes law on the day the Minister signs it and remains law unless rejected by a motion within 40 sitting days

The immigration rules are made and modified by statements of changes laid before Parliament by the Home Secretary. They are a form of secondary legislation which are referred to as 'administrative' rules by the Immigration Act 1971 under which they are made. The rules issued in 1994 were named HC 395, and all subsequent rules are thus an amendment to HC 395.

The specific legal status of the immigration rules is a subject of debate.

The Immigration Rules are subject to Parliamentary approval through the negative resolution procedure. This means they can take effect without a vote in Parliament. It is rare, but not unheard of, for Parliament to formally disapprove a Statement of Changes to the Immigration Rules (which would in turn require the Government to lay an amended version of the Rules).

There have been some concerns raised about the level of parliamentary scrutiny involved in amending the Immigration Rules. [13]

2. Immigration announcements under the Johnson government

Boris Johnson and Priti Patel have indicated some of the ways in which they will deviate from the plans set out in the Immigration White Paper, and some of the recent announcements are outlined below. At time of writing these are policy announcements only and, unless otherwise mentioned, the substantive details are largely unknown.

An overview of the existing White Paper proposals can be found in section 4 of this paper.

2.1 The Queen's Speech 2019

In the Queen's Speech on 14 October 2019 a new Immigration and Social Security Co-ordination (EU Withdrawal) Bill ("the Johnson immigration bill") was announced. The Bill has not been published at time of writing.

It is therefore not clear to what extent the measures in the Johnson immigration bill will deviate from those proposed in the previous Parliamentary session. The Library's briefing paper on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 ("the May immigration bill") provides detailed information on the measures included in the original Bill, which fell when Parliament was prorogued.

As per the May immigration bill, the Johnson immigration bill will pave the way for the implementation the future immigration system by ending free movement in the UK. The substantive immigration law for the future system would be introduced through changes to the Immigration Rules. 'The Queen's Speech and associated background briefing' provides information on the proposed Immigration and Social Security Co-ordination (EU Withdrawal) Bill.

The Bill would end free movement of EU citizens under UK law, confirm the status of Irish citizens in the UK, and set out deadlines and rights of appeal under the EU Settlement The background notes suggest that the new bill will contain a right of appeal for decisions made under the EU settlement scheme, which is a new addition when compared to the May Immigration Bill, although right of appeal is set out in the May Withdrawal Agreement. It is unclear at time of writing whether the Government intends a right of appeal to be available in the event of a no-deal Brexit.

2.2 'Vindaloo visas'

This is not a new visa but is rather an amendment to the shortage occupation list for Tier 2 work visas.

Following a recommendation from the Migration Advisory Committee in their review of the Shortage Occupation list, the Home Secretary recently announced the introduction of a so-called 'vindaloo visa'. [14] The change came into effect from 6 October 2019 [15] and has meant some restaurants providing a takeaway service are now able to sponsor visas for non-EEA national chefs.

Previously, skilled chefs were included on the Shortage Occupation List but subject to a number of conditions, such as a minimum salary of £29,570 after deductions, that the job requires five or more years' relevant experience at the equivalent level, and that it is not in an outlet which provides a fast food or take away service. The change means the bar on outlets providing a takeaway service has been lifted, but the other eligibility criteria remain.

2.3 Post-study work

On 11 September 2019 the Government announced that international students starting their courses in 2020/21 will be eligible to remain in the UK for 2 years following the end of their studies.

The UK historically had a 2-year post-study work route which was closed in 2012. Following its closure, post-study work rights were restricted. International graduates remained eligible to apply to switch to a skilled work visa, if they secured a graduate level job or training offer from an approved employer before the end of their student visa. [16]

The closure of this route attracted criticism, and there have been many subsequent calls for its reinstatement. [17] The Government's decision to reintroduce the 2-year post-study work route followed an amendment tabled by Jo Johnson MP to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 which attracted cross-party support, and significant media attention.

The Government announcement explained the route will be available to all international students who have completed a course at a minimum of undergraduate level with an approved Higher Education Provider:

The visa will allow eligible students to work, or look for work, at any skill level or subject, giving them valuable work experience at the start of their careers.

… The new route will launch for the 2020/21 intake of students to university. After the two years, they will be able to switch onto the skilled work visa if they find a job which meets the skill requirement of the route. [18]

A Home Office Factsheet published 14 October 2019 confirmed that students whose existing Tier 4 student visas expire before the new route is implemented in the summer of 2021 will not be eligible to apply. [19]

2.4 Global Talent visa

On 8 August 2019, the Prime Minister, Boris Johnson, announced a new fast-track visa for the scientific community and their eligible dependents which will fit into the existing Tier 1 visa route.

A Home Office factsheet for the Global Talent visa provides further information:

The Home Office will launch a new fast-track immigration offer for selected individuals with skills in science, technology, engineering and mathematics (STEM) subjects, building on the existing Tier 1 Exceptional Talent visa route.

The new scheme will provide eligible individuals with a three-year visa, during which they can come and go from the UK at will. At the end of three years, those on the scheme would be able apply for indefinite leave to remain (giving a permanent right to reside in the UK and access to benefits and healthcare on the same basis as British citizens).

There will be no minimum salary requirement and individuals do not need to secure a job before arriving in the UK (unlike the existing Tier 2 route for skilled workers).

Individuals will be able to bring dependants (spouses/partners and children), with adult dependants having full access to the labour market. [20]

2.5 Net migration target dropped

The Johnson Government has reportedly dropped the Conservative's net migration target. Following Boris Johnson's first statement in the House of Commons, the Prime Minister's spokesman confirmed that Boris Johnson was not interested in "a numbers game". [21]

The target was first announced by then Home Secretary, Theresa May, under the 2010 Coalition Government. Theresa May said net migration would be reduced "from the hundreds of thousands back down to the tens of thousands" by the end of the 2010 Parliament. [22]

The target was retained by successive Governments and was a commitment in the Conservative Party's 2017 manifesto.Migration Statistics' provides further information. [23] However, ONS Migration Statistics demonstrate that the Government target has not been reached in any year since it was set. The Library's briefing paper '

2.6 Amnesty for "illegal immigrants"

During his first appearance in the House of Commons as Prime Minister, Boris Johnson reiterated his support for the policy of an amnesty for illegal immigrants in the UK:

As for the amnesty on illegal immigrants, it is absolutely true that I have raised it several times since I was in Government, and I must say, it did not receive an overwhelming endorsement from the previous Prime Minister when I raised it once in Cabinet. I think that our arrangements, in theoretically being committed to the expulsion of perhaps half a million people who do not have the correct papers, and who may have been living and working here for many, many years without being involved in any criminal activity at all—I think that legal position is anomalous. We saw the difficulties that that kind of problem occasioned in the Windrush fiasco. We know the difficulties that can be caused and I do think—I will answer the hon. Lady directly—that we need to look at our arrangements for people who have lived and worked here for a long time, unable to enter the economy and to participate properly or pay taxes, without documents. We should look at it. The truth is that the law already basically allows them an effective amnesty—that is basically where things have settled down —but we should look at the economic advantages and disadvantages of going ahead with the policy that she described, and on which I think she and I share a view. [24]

The Prime Minister also referred to his long-standing policy on such an amnesty during both the Conservative leadership campaign [25] and during the EU referendum campaign. [26]

2.7 Uncertainty over route for low skilled immigration

The Immigration White Paper had proposed a 'transitional route' whereby workers of all skill levels, from certain as-yet undefined "low risk" countries, would be permitted to enter the UK for 12 months. This was designed to aid sectors which currently have a reliance on an EU workforce, such as social care and agriculture. The scheme was to remain under review, but it was proposed there would be no cap on numbers, and as such would allow an unspecified number of low skilled workers to come to the UK on a temporary basis.

It remains unclear whether the Johnson Government intends to continue this transitional route. Writing for the Mail on Sunday on 28 July 2019, Priti Patel stated:

The end of free movement means that we will be able to consider the impact on the existing labour market when determining whether we want unskilled workers from the EU to be able to come to the UK.

Because immigration alone is not the answer. Rather than automatically relying on low-skilled labour from abroad, our new approach means British businesses will have to back our people. They must invest in training, technology and to increase domestic skill levels. We will check all prospective migrants to see if they have a criminal record, to ensure we can exclude those whose past means they're not welcome here. [27]

3. Migration Advisory Committee

The Migration Advisory Committee ("the MAC") is an independent body which advises the Government on migration issues. The MAC was commissioned to report on the impact of EEA migration in the UK by the May Government in July 2017. The report and recommendations produced in response in September 2018 informed the May Government's White Paper. [28]

Since then, they have been commissioned to review salary thresholds and the possible implementation of an Australian style points-based immigration system in the UK. The MAC is due to report its findings in January 2020.

3.1 Salary thresholds

Under the current system for non-EEA nationals, to be eligible for a Tier 2 (general worker) visa, migrants "usually need to be paid at least £30,000 per year or the 'appropriate rate' for the job offered – whichever is higher." [29]

The MAC provide a comprehensive description of how the salary thresholds currently operate:

The existing salary to be paid for an occupation is set at the 25th percentile of the full-time earnings distribution measured using ASHE, or £30,000, whichever is higher. This leads to a wide range of thresholds depending on the occupation, for example SOC2 115 Chief executives and senior officials have an experienced worker rate of £65,100 and SOC 2121 Civil Engineers have an experienced worker rate of £33,300.

There are numerous exceptions to this including:

• New Entrants are subject to a salary threshold of £20.800, or the 10th percentile of the occupation whichever is higher.

• The appropriate rate set for 24 (largely) public sector occupations, including secondary school teachers in specific subjects, nurses, paramedics and medical radiographers, are taken from national pay rates e.g. NHS pay bands.

• Pre-registration nurses and midwives are paid on the NHS Agenda for Change Band 3 rates subject to certain conditions.

• There are some occupations that have different appropriate rates applied depending on certain characteristics. E.g. Biological scientists are subject to Agenda for Change thresholds if they work in the health sector and architects have different thresholds depending on the stage of their training. [30]

The MAC recommended that the existing £30,000 salary threshold be retained for Tier 2 visas under the future immigration system, in their report 'EEA migration in the UK: final report'.

This would mean both non-EEA and EEA migrants would be subject to the £30,000 salary requirement.

This recommendation attracted considerable parliamentary and media attention. It was not immediately accepted by the Government and the White Paper explained there would first be a consultation with businesses and employers on the exact level of the salary threshold and consider wider evidence of the impact of the economy, before deciding whether to accept the £30,000 threshold.

Sajid Javid therefore commissioned the MAC on 24 June 2019 to further advise on the future system of salary thresholds and the level at which they could be set. [31]

The MAC call for evidence summarises the points they have been commissioned to investigate, including an analysis on the impact of the salary threshold on:

─ annual net migration;

─ the resident workforce;

─ migrant workers;

─ the supply of labour;

─ public finances; and

─ the effects on the economy.

Other areas the MAC has been asked to consider include:

─ potential regional variation in salary thresholds;

─ potential exceptions to salary thresholds including jobs that are on the Shortage Occupation List;

─ how to deal with jobs of high public value but not high wages;

─ what allowance to make for new entrants;

─ how non-cash benefits and allowances and equity should be taken into account; and

─ what allowance, if any, to make for part time workers. [32]

The MAC is expected to report back on its proposals by January 2020, and the Government will then "consider all the evidence before finalising plans." [33]

3.2 Points-based immigration system

Throughout the Conservative leadership campaign and during his time as Prime Minister, Boris Johnson has said he "wants a new Australian-style points-based system." [34] On 3 September 2019, the Home Secretary, Priti Patel, commissioned the MAC to conduct a review of the Australian immigration system and similar systems to 'advise on what best practice can be used to strengthen the UK labour market and attract the best and brightest from around the world'. [35] This is to be carried out alongside the existing commission on salary thresholds.

In the supplementary instruction provided to the MAC revising the existing salary threshold commission, the Home Secretary stated:

The Government would therefore like the MAC, as part of their current work, additionally to consider:

• How additional flexibility could be added to the operation of salary thresholds through the awarding of "points" to prospective migrants for the attributes that they possess, such as their educational qualifications, language proficiency, work experience, willingness to work in particular areas and occupation; and the degree to which points in one area should be "tradeable" to make up for a lack of points in another.

• Which migrant characteristics should be prioritised within the immigration system in order to produce the most beneficial outcomes for the UK.

• What best practice can be learnt from international comparators, including the Australian immigration system, to strengthen the UK labour market. [36]

It was widely reported in the media in October 2019 that the Home Secretary was considering the introduction of a points-based system which awards extra points to applicants who agree to take skilled jobs in northern England and coastal towns. The Times reported the following on 14 October 2019:

Ms Patel wants to spread skilled migrants around the country by awarding a higher score to those willing to work in low-income areas. Whitehall sources say that the aim is to ensure that deprived regions as well as areas that have taken in many unskilled migrants receive a fair share of skilled workers. [37]

What is a points-based system?

This raises the questions of what exactly a 'points-based system' is, and how it differs to what we have already. Immigration specialists point out that the UK already has a points-based system in use for non-EEA migration.

A June 2016 briefing by the Migration Observatory, based at the University of Oxford, summarises:

A points system is a way of selecting labour migrants based on their characteristics, such as their educational qualifications, language proficiency, work experience and occupation. The best-known examples of points systems are from Canada, Australia and New Zealand. Traditionally, the main feature of a points system has been that it admits migrants based on their qualifications rather than because an employer has selected them to fill a specific job (although some points systems do require or strongly prioritise people with a job lined up). [38]

Under a pure points-based system it would be possible for someone to come to the UK without a guaranteed job, if they met the necessary points criteria. This has led some to argue that such a system offers a flexible and liberal approach to migration. This is often contrasted with an employer-led approach, whereby migrants must be sponsored by an employer for a work visa to perform a specific job. However, it is possible to combine both approaches, creating a 'hybrid selection system'. A Migration Policy Institute report from April 2019 makes the following comments:

Hybrid selection systems have gained popularity for an obvious reason; they allow policymakers to take the best attributes of both demand-driven and points-based systems, and thus improve outcomes for immigrants, their employers, the broader economy, and society at large. [39]

Following a hustings during the Conservative leadership campaign, it was widely reported in the media that Boris Johnson made the following comments in relation to the Australian system:

We will restore democratic control of immigration policy after we leave the EU. We must be much more open to high-skilled immigration, such as scientists, but we must also assure the public that as we leave the EU we have control over the number of unskilled immigrants coming into the country.

We must be tougher on those who abuse our hospitality. Other countries such as Australia have great systems and we should learn from them. [40]

At another leadership hustings, Boris Johnson referred to the possibility for agricultural workers to come to the UK under the new points-based system. He said that as long as migrant workers have a job lined up and there is a need, or shortage of workers to fill those jobs, then it would be 'credible' for them to come to the UK in accordance with a "broadly open approach to immigration." [41]

What does the UK's current system look like?

Following the Government's plans to introduce a 'new Australian-style points-based system', some commentators have argued the UK already has a points-based system for immigration. In response to the Home Secretary's commission for the MAC to investigate a points-based system in the UK, the Chair of the Committee, Professor Alan Manning, also identified that the UK has previously utilised a points-based approach:

As an evidence-based body it is important for us to be able to evaluate the UK's previous experience with systems similar to a PBS – the Highly Skilled Migrants' Programme (that ran from 2002-2008) and the Tier 1 (General) programme (that ran from 2008 to 2010). [42]

In 2008, the then Labour Government introduced a "points-based system for non-EEA immigration" for the UK. Although the then Government said the system was inspired by Australia's model, there are some significant differences between the UK's system and those in other points-based countries, including Australia. For example, whilst Australia allows for applicants to score zero in some categories and still be eligible for a visa, the UK system does not offer such flexibility.

Some of the significant features of the UK's approach include:

• The UK's points-based system does not only cover work visas. For example, student visas, and visas for sportspeople, entrepreneurs and investors also fall within its scope.

• The 'points' assessment for visa eligibility is essentially symbolic. Each visa category specifies certain mandatory criteria which must all be satisfied to be eligible for a visa. Each of the criteria have a fixed number of points attached. There is no scope for flexibility over the number of points awarded, or the possibility to off-set points accrued in one category against those needed in another. Therefore, a person who satisfies the mandatory eligibility criteria will automatically accrue the number of points required, and a person who cannot satisfy one of the criteria will not have the number of points needed. The only exception to this is the separate points test for restricted Tier 2 (General) sponsorships (i.e. cases subject to the skilled worker visa 'cap'). [43]

• The main points-based visa categories require the migrant to already have a job/study offer or endorsement from an approved sponsor.

• People wishing to come to work in the UK have few alternative visa options to applying for a visa within the points-based system. There are only a few other niche work visa categories available outside of the points-based system. Neither does the UK have separate entry streams for permanent and temporary economic immigration. People who enter the UK under the points-based system are given temporary permission to remain initially, and some of them become eligible to stay permanently. In other countries, points-based categories are often one of several different temporary/permanent work visa categories available. [44]

Further information on the UK's points-based system can be found in the Library's briefing paper 'The UK's points-based system for immigration'

What is the 'Australian points-based system'?

The Prime Minister has consistently referred to the Australian system when outlining his aspirations for the UK's future immigration system.

The Migration Observatory at the University of Oxford published a report 'The Australian points-based system: what is it and what would its impact be in the UK?' which provides an overview of the system and how it differs to the UK:

Points systems are used in Australia and several other countries to select skilled migrant workers. They are a way of ranking or prioritising applicants for jobs based on their characteristics, such as education, language skills and work experience. In Australia, candidates that score the highest number of points based on these characteristics are invited to submit a visa application. Australia allows people to migrate without a job offer, although other countries with points tests, such as Austria and New Zealand, either require or prioritise job offers.

The UK's current system for admitting non-EU citizens is known as 'The Points-based System' although it is quite different from the Australian model and relies heavily on employers to decide which workers have the skills that they need. Compared to the UK's employer-driven system, Australia's points system is more centrally planned as the government, rather than employers, plays the key role in deciding who should be admitted. There is also more scrutiny of migrants' personal characteristics such as their age and qualifications, and not just the jobs they will do. Unlike in the UK, many skilled workers migrating to Australia receive permanent residence rights immediately.

The effects of introducing an 'Australian-style' points system in the UK would depend on how it was designed – for example, what points were awarded to and whether the role of employers in the immigration system changed. Australia has used its points system to generate relatively high levels of migration, but it is possible to design more restrictive points systems that would not have this effect. [45]

It is important to note that Australia does not only operate a points-based system; there are a wide range of visas available outside points-based rules. According to an Australian Government website the entire 'migration program' has a maximum of 160,000 places available for 2019-20. [46] The majority of places available are in the 'skill stream' (108,682 places in 2019-20, which is 69.5 per cent of the migration program). [47]

The best-known points tested visa in Australia is known as the 'Skilled Independent' route, which provides visas for permanent residency. [48] The Australian Government capped the number of available 'skilled independent' visas at 18,652 in 2019-20. [49] Prospective migrants submit an 'expression of interest' online, and some are then invited to make a visa application. Applicants must earn a minimum of 65 points, although the Migration Observatory report notes that:

…in practice candidates often need more points than this to be invited, because only the highest ranked candidates are invited to apply. In June 2019 as the migration 'program year' drew to a close, applicants had to score at least 85 points to be invited, up from 70 points 6 months earlier in December 2018. [50]

An overview of the eligibility criteria for the 'Skilled Independent' visa can be found in the Annex of this paper.

4. The Immigration White Paper

The Immigration White Paper 'The UK's future skills-based immigration system' was published on 19 December 2018. The White Paper set out the May Government's proposals for the future post-Brexit immigration system for EEA and non-EEA nationals.

The Johnsons Government has signalled that it will build on the existing proposals in the White Paper. The Home Office has been holding an 'engagement exercise' with businesses and stakeholders regarding the White Paper proposals throughout 2019. As of June 2019, the Home Office had reportedly held more than 100 events so far this year, reaching almost 1,500 stakeholders, and they also set up five advisory groups to help shape the plans. [51] The Government have said they will consider the responses, before finalising proposals in January 2020.

4.1 Workers

UK currently has a dual system for foreign workers, whereby EEA workers of any skill level can come to the UK but generally only 'highly skilled' workers from outside the EEA are permitted entry under dedicated work visa routes.

The plans for the future immigration system generally apply to EEA workers and non-EEA workers alike. Some of the proposals for the tier 2 work visa (the primary work visa) include:

• Lowering the required job classification for a tier 2 visa from RQF level 6 (graduate/post-graduate level) to RQF level 3 (jobs requiring A level qualifications). [52]

• Abolishing the cap on tier 2 visa numbers (the route for most non-EEA workers entering the UK; the cap is currently 20,700 per year)

• Abolishing the 'Resident Labour Market Test' which employers currently must complete to sponsor a worker

• Introducing a transitional route (to be reviewed in 2025) for workers of all skill-levels, from some countries, to enter the UK for 12 months. This was designed to aid sectors which currently rely on an EU national workforce such as the social care and agricultural sector.

Other work visa routes

The White Paper also includes plans for other visa routes which are adapted from the current immigration system.

An overview of the proposals is quoted below:

• Innovators. For experienced business people who want to set up a business in the UK that is innovative, scalable and viable. We intend to launch a new Start-Up visa route in Spring 2019, for those at an early stage of their career with an innovative business idea, who can then move into the Innovator route. [53]

• Exceptional Talent. A flexible route for highly skilled individuals in the creative, arts and humanities, science, research and engineering, and digital technology sectors, who wish to work in the UK.

• Investors. For those who make a substantial financial contribution to the UK.

• Other temporary workers. Alongside the new temporary short-term worker route, we will continue to operate other temporary routes such as our Youth Mobility Schemes, routes for sportspeople, those in the creative sector and charity workers. We are piloting a scheme to assist the agricultural sector. [54]

4.2 Visitors

The White Paper proposals for visitors coming to the UK do not depart significantly from the existing system. The Government stated in the White Paper that:

Tourists will continue to enjoy a generous entitlement to spend up to six months in the UK. Visitors coming to the UK for short-term business reasons will be able, as now, to carry out a wide range of activities, including permitted paid engagements. We will discuss with stakeholders whether these arrangements can be improved to reflect business need.

Furthermore, the White Paper sets out the following position in relation to EU national visitors:

We do not intend to require visitors who are citizens of current EU Member States to obtain a visit visa in advance of travel and we intend to allow them to continue to use e-gates to make entry quick and easy. We propose to make binding commitments to this effect in a future mobility partnership, if the EU reciprocates.

According to the White Paper "under the future system, everybody wishing to come to the UK, be it for work, study or to visit, will need a digital permission"

The most significant change outlined in the White Paper visitor proposals relates to the creation of a digitised permission which would be required for everyone coming to the UK:

Under the future system, everybody wishing to come to the UK, be it for work, study or to visit, will need a digital permission. As an individual enters and leaves the UK, this will be digitally recorded and linked with their individual immigration status, so it will be clear whether that person has stayed beyond the permitted duration of their stay.

Electronic Travel Authorisation scheme (ETA)

For all visitors, an Electronic Travel Authorisation (ETA) scheme is to be introduced. This will reportedly require visitors and transit passengers to obtain permission prior to travel, including existing non-visa nationals and EEA nationals.

Under existing rules, non-visa nationals do not normally require a visa to visit the UK for less than six months. Non-visa nationals refer to nationals of any country not listed in Appendix 2 of the Immigration Rules Appendix V: Visitor Rules, which includes countries such as Australia and Canada.

The new ETA will reportedly be "a simple online system which is more light-touch than a visa requirement" and will be valid for multiple entries over an extended period.ETIAS ) which is to be introduced in the EU from 2021. The rationale for introducing the ETIAS across the EU is reportedly, in part, to address security concerns: [55] From the available information, it appears the ETA is intended to be similar to the Electronic System for Travel Authorisation (ESTA) in the US, and the European Travel Information and Authorisation System (

The E.U. Commission has proposed the new pre-travel authorisation system because of changes in the numbers of visitors coming to Europe and the reasons why they go there. It is hoped that the system will deter potential criminals and terrorists as well as monitor all those who intend visiting to provide a greater level of security for Europe's residents. [56]

The White Paper echoes this point in relation to the UK, stating:

The ETA scheme will… enable the Government to conduct security checks on passengers and make more informed decisions… as to whether individuals should be allowed to travel to the UK. [57]

The scheme requires primary legislation to be implemented and is currently under development according to the White Paper.

E-gates

The White Paper outlined plans for e-gates to be more widely accessible in future, and as noted above, to still be used by EU nationals. This may depend on reciprocal arrangements being put in place for UK nationals travelling to the EU:

The Government is preparing to allow entry through e-gates to a wider range of nationalities. Subject to approval by Parliament, from next summer, specified low-risk nationalities, including nationals of Australia, Canada, Japan, New Zealand, the United States of America, Singapore and South Korea will be allowed to use e-gates to pass through the border on arrival

EU adults (and some children aged 12 years and over) who possess biometric passports may also continue to use e-gates. This will enable the vast majority of EU citizens to continue to enter the UK smoothly and without the need to have their passport stamped. We will seek to agree reciprocal treatment for UK nationals travelling to EU Member States to ensure that they can also benefit from smooth passage at the border. [58]

Since the publication of the White Paper the plans to expand the use of e-gates have been implemented. From 20 May 2019, eligible travellers from the seven countries listed above are able to use e-gates. [59]

4.3 Students

The White Paper proposed broadly retaining the existing arrangements that are in place for students, which the Government said were working well:

• We do not propose to lower standards in the study route, which is working well after the reforms which stopped the unacceptably high levels of immigration abuse encountered a decade ago by non-genuine students. Individuals must demonstrate that they are genuine student, meet English language and maintenance requirements and have a proven academic track record.

• We will maintain rules that to undertake further study a student must demonstrate academic progress. It must be a route to allow access to our world leading institutions, nor a back-door route to work or settlement. [60]

However, the White Paper did set out some changes, such as proposals to allow undergraduate and masters students to remain in the UK for six months after finishing their studies, whilst PhD students would have one year. This has since been increased to two years as outlined in section 2.3.

The White Paper also stated:

• We will also allow for students studying at bachelor's level or above to be able to apply to switch into the skilled workers route up to three months before the end of their course in the UK, and from outside of the UK for two years after their graduation. [61]

4.4 Family

The White Paper did not propose to make significant changes to the rules for family migration and permanent settlement. Instead, the existing rules for family migration and permanent settlement would apply to everyone, rather than just non-EEA nationals as is currently the case. This includes the minimum income requirement for sponsoring family members (£18,600 for a partner), which has often attracted criticism in the past. Further information on this can be found in the Library's briefing paper 'The financial ('minimum income') requirement for partner visas'.

The Government's position is summarised:

• Financial independence means meeting a minimum income requirement of £18,600 for sponsoring a partner to come or remain here, which rises to £22,400 for sponsoring a partner and non-British or settled child, and an additional £2,400 for each further child. This reflects advice from the MAC, on the level of income which means a family settled in the UK generally cannot access income-related benefits.

• Speaking English is fundamental to successful integration into British society, helping migrants to participate in community life and find work. It makes it easier for families to access vital public services and enables parents to support their children's education. Those coming to the UK on a family visa with only basic English are required to become more fluent over time.

• It is essential that migrants learn to speak and understand our language and make the most of opportunities to become part of our communities – and the Government and existing residents of communities need to support them to do this. This will only become more important as we leave the European Union. We must unify as one nation and remove any barriers, working with a wide range of stakeholders, including communities and voluntary and faith organisations. [62]

4.5 Life in the UK test

The White Paper set out the Government's intention to review the Life in the UK test:

Those wishing to settle in the UK must pass the Life in the UK test. The Government will review this test, last reviewed in 2012, to ensure it is up to date. [63]

The White Paper also signalled that language requirements would be made more stringent:

…we are committed to refreshing the Life in the UK test to reflect better modern British values, as well as strengthening the language requirements for those seeking to become British citizens. [64]

4.6 Asylum

Many aspects of the White Paper proposals related to asylum-seekers are reliant on securing agreement with the EU, and as such they are more tentative than proposals found elsewhere in the White Paper. For example, the White Paper makes the following points in relation to the EU Dublin III Regulation, that the UK is currently a signatory to:

We subscribe to the principles of the EU Dublin Regulation to ensure those in need of protection claim asylum in the first safe country they reach and to facilitate the reunion of family groups, so their asylum claim can be considered together. We intend to seek an agreement on this with the EU or with individual Member States. [65]

Asylum, if required, should always be claimed in the first safe country that a migrant reaches. We intend to negotiate and implement a new legal framework to return illegal migrants, including asylum seekers, to EU countries they have travelled through, or have a connection with, to have their protection claim considered, where necessary. It is vitally important that our new system does not encourage asylum seekers who have already reached a safe country to choose to move elsewhere. Equally the system must prevent people from making claims in more than one country, and on multiple occasions. [66]

In response to a PQ in April 2019 , then Immigration Minister, Caroline Nokes provided some further clarification on this:

We are working to secure a comprehensive returns agreement with the EU that replaces our obligations under Dublin once we leave the EU, post Implementation Period. Furthermore, as set out in section 17 of the Withdrawal Act, the UK will seek to negotiate an agreement with the EU to continue to provide a legal route for Unaccompanied Asylum-Seeking Children to be reunited with family members in the UK.

Asylum seekers & work rights

Asylum seekers are not typically allowed to work in the UK under the existing rules, with exception. For more than a decade, the UK's policies to restrict asylum seekers' rights to work in the UK have attracted criticism from NGOs, trade unions, churches and some Parliamentarians, amongst others. However, successive governments have rejected calls to extend asylum seekers' rights to work; they have consistently emphasised concerns that to do so might encourage unfounded asylum claims. [67]

The White Paper indicated that the Government was considering altering the rules, signifying a potential change in approach:

Furthermore, we recognise the importance of work when it comes to physical and mental wellbeing, building a sense of wider contribution to our society, and for community integration. That is why the Government has committed to listening carefully to the complex arguments around permitting asylum seekers to work. We are considering all the evidence to ensure that our policy of right to work safeguards the integrity of both our asylum and immigration systems. [68]

Further information on this can be found in the Commons Library briefing paper 'Should asylum seekers have unrestricted rights to work in the UK?'.

Resettlement schemes

The White Paper stated that the Government would continue to provide support to refugees under the existing resettlement schemes; Gateway, Mandate, the Vulnerable Persons Resettlement Scheme (VPRS) and the Vulnerable Children's Resettlement Scheme (VCRS). However, the White Paper made clear that the future position after 2020 had not yet been decided upon:

We are currently considering what the future of resettlement should look like after our current commitments to 2020. [69]

On 17 June 2019, then Home Secretary, Sajid Javid, confirmed that from 2020 a new global resettlement scheme would be created which would resettle between 5000 and 6000 refugees in the year 2020-21. [70] The scheme consolidates the VPRS, the VCRS and the Gateway Protection Programme into one, and will reportedly "broaden the geographical focus beyond the Middle East and North Africa". [71]

The Government announced concurrently:

A new process for emergency resettlement will also be developed, allowing the UK to respond quickly to instances when there is a heightened need for protection, providing a faster route to resettlement where lives are at risk. [72]

5. Annex: Example of an Australian points-based visa

One example of a points-based visa is the Australian Skilled Independent visa.

It is not known whether the UK Government intends to implement similar criteria under an 'Australian style points-based system', but it is provided by way of an example.

Applicants for this visa do not need to have a job lined up but have to score at least 65 points from a points table, and meet other eligibility criteria. In practice, applicants often need to score above 65 points to be invited to apply for a Skilled Independent visa. The minimum points score required for the September 2019 invitation round was 85 points and varied by occupation. [73]

Box 2: 'Skilled Independent visa' eligibility criteria The criteria for the Skilled Independent visa (subclass 189) are set out by Australia's Department for Home Affairs and summarised below: • Be able to score 65 points or more Points can be accrued in varying ways. For example, having less than 3 years skilled employment outside Australia equates to 0 points, whereas at least 8 years' experience gives 15. In terms of language, being proficient in English provides 10 points, compared with 'superior English' which earns 20. The Australian Government have published a 'points calculator' on their website. Applicants must also: • Be invited to apply Applicants submit an 'Expression of Interest' and applications are subsequently ranked against each other, with some applicants then invited to apply. • Have a suitable skills assessment • Be under 45 years of age when invited to apply • Have at least 'competent' English • Meet the skills requirement • Meet the health requirement • Meet the character requirement • Paid back any debt to the Australian government • Signed the Australian Values Statement There are two versions. One for a temporary visa, and another for a permanent or provisional visa. • Applicants might not be eligible if they had a visa cancelled or a previous application refused

___________________________________

About the Library

The House of Commons Library research service provides MPs and their staff with the impartial briefing and evidence base they need to do their work in scrutinising Government, proposing legislation, and supporting constituents.

As well as providing MPs with a confidential service we publish open briefing papers, which are available on the Parliament website.

Every effort is made to ensure that the information contained in these publicly available research briefings is correct at the time of publication. Readers should be aware however that briefings are not necessarily updated or otherwise amended to reflect subsequent changes.

If you have any comments on our briefings please email papers@parliament.uk. Authors are available to discuss the content of this briefing only with Members and their staff.

If you have any general questions about the work of the House of Commons you can email hcifo@parliament.uk.

Disclaimer

This information is provided to Members of Parliament in support of their parliamentary duties. It is a general briefing only and should not be relied on as a substitute for specific advice. The House of Commons or the author(s) shall not be liable for any errors or omissions, or for any loss or damage of any kind arising from its use, and may remove, vary or amend any information at any time without prior notice.

The House of Commons accepts no responsibility for any references or links to, or the content of, information maintained by third parties. This information is provided subject to the conditions of the Open Parliament Licence.

© Parliamentary copyright

(End)

[73] Australian Government, Department of Home Affairs, Working in Australia, SkillSelect: Invitation rounds, 26 September 2019