Introduction

This is not another Brexit topic – promise!

On a more serious note, the UK Government has re-affirmed their commitment to change the immigration legal landscape by 1 January 2021 as a response to now being able to ‘take back our borders’. Rather than simply discuss the potential flaws of this attitude, we intend to discuss our concerns with the UK Government’s vision on how it intends to deliver those changes through an ‘Australian Points Based System’ approach.

In fact, it is our opinion that the proposed shift towards a Points Based System (PBS) is unnecessary for two key reasons-

  1. The UK already has an effective system in place for highly skilled workers; and
  2. The UK has in the past introduced a very similar ‘authentic’ Points Based System which was subsequently scrapped.

We would, therefore, urge the UK Government to not rush into making changes for the sake of change, but rather to consult with UK immigration solicitors in order to tweak the current Immigration Rules we currently have in place.

Proposed Changes

The Home Secretary, Priti Patel reaffirmed the Government’s commitment in securing the UK’s borders in a post for the Mail On Sunday (https://www.dailymail.co.uk/news/article-7293539/PRITI-PATEL-Home-Secretary-bluntly-reveals-determination-secure-borders-deal-no-deal.html). In doing so, she revealed that the Government led by Boris Johnson were abandoning the erstwhile Theresa May’s more general changes (as set out in her White Paper of December 2018) in favour of a move towards a PBS approach.

Essentially, a PBS approach judges’ applicants by awarding point’s dependant on their circumstances. Consequently, there will be heavy scrutiny based on factors such as previous experience, age, language and qualifications. Points will be awarded on a sliding scale. For example, in the category of qualifications, a candidate will score more points for holding a PhD as compared to another candidate who holds a Master’s degree. Ultimately, candidates who meet a predefined point’s threshold will thereafter be issued with a PBS visa.

The PBS approach is more nuanced than the basic summary above, but we trust this will suffice as an introduction.

The UK’s current approach visa highly skilled workers are regulated under the Tier 2 provisions in Part 6A of the Immigration Rules (https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-6a-the-points-based-system). Points are simply awarded by meeting each requirement, there is no sliding scale.

The onus is placed on an employer to justify why (san narrow exceptions) they were unable to employ someone who is British, European or hold settled status in the UK. This is known as the ‘Resident Labour Market Test’ and is essentially a requirement for an employer to advertise a position for at least 28 days in a prescribed manner. Upon completion of the Resident Labour Market Test, an employer can apply to sponsor a specific candidate in the event they were unable to find a suitable candidate otherwise.

Supporters of the PBS approach point towards the fact that the Tier 2 provisions places the onus on employers to find the best candidate and justify their choice as oppose to the UK Government having the final say as to which candidates are most suitable to live and work in the UK.

It is our position that there is a reason why the Tier 2 provisions have withstood the test of time.

Concerns with the PBS approach

It is our opinion that the suggestion that the proposed shift to a PBS approach as being ‘radical’ and a ‘re-write’ (as per Patel) of immigration in the UK are misguided at best.

As set out above, it is our opinion that there is a reason why the Tier 2 regime currently in effect have remained since its induction in November 2008 – there was actually a rebellious older brother which the UK Government wishes to keep secret.

The Tier 1 (General) category was introduced at the same time as the Tier 2 provisions but was scrapped to new applicants on 6 April 2011. The Tier 1 (General) provisions allowed applicants to score points based on inter alia: qualifications, previous experience and age. Those who reached a predefined point’s threshold were given visas to live and work in the UK.

Sounds familiar?

Consequently, Patel’s claims that a shift towards a PBS approach as being radical and a re-write is simply untrue. The UK has, in fact, adopted an ‘authentic’ PBS approach which wholly failed and ended up being scrapped.

Consequently, we are concerned that Patel’s rush to proclaim that the PBS approach as being the answers to all immigration related problems must be approached with a significant amount of salt. Questions must be asked why Patel champions an option which failed previously and whether these declarations are simply sound bites to an alienated British public about the Government taking back ‘control’.

But the issues actually runs deeper. Polls in 2018 by YouGov actually suggests that the British public is in fact in favour of increasing highly skilled migration. Statistics taken in 2018 show that 70% were happy to keep or see an increase in the levels of skilled migration (https://yougov.co.uk/topics/politics/articles-reports/2018/04/27/where-public-stands-immigration).

Therefore, one must question whether the Government’s crusade is actually necessary at all.

Although we appreciate that statistics taken from polls can never be accepted as conclusive, it is our opinion that the polls are nonetheless very clear – there is no appetite in the British public to reduce skilled migration. So why are the Government hellbent on doing so at significant costs to time and money. We would suggest that this time and money would be best placed allocated elsewhere and the current Immigration Rules amended instead.

Another key point to this discussion is that the Government have proposed or introduced low skill workers and post-study workers categories respectively. It would appear that this directly contradicts the Government’s claims that they are carrying out the wishes of the British public – to reduce migration and only let the most highly skilled to enter or stay in the UK.

Conclusions

Changes in immigration are always needed. But it is our opinion that change for change sake or for political point scoring is unnecessary and nothing more than an exercise in vanity. The proposed changes are simply a rehash of what has failed before. We should be slow to embrace the proposed changes with open arms and pure optimism.  

We urge the Government not to rush headstrong towards introducing changes that are not in the public interest. Rather, we would invite and welcome a chance for the UK Government to undertake a full consultation with immigration practitioners in order to strike a fair balance and to avoid the mistakes of the Tier 1 (General) scheme.

Author's Bio: 

Precious Nicolas is a correspondent for Reiss Edwards – an organisation of leading UK immigration solicitors. A lover of nature and media personnel who enjoys reading, research, travels and tourism. With an educational background in Journalism and mass communication gives a broad base to her approach to writing.