UK immigration White Paper - what employers need to know

The UK government has published an Immigration White Paper with the overarching aim of reducing net migration to the UK. The Paper includes a range of measures that will significantly impact UK businesses and individuals. Partners Andrew Osborne and Supinder Sian talk through some of the key elements of the Paper, including the proposals on earned settlement/citizenship and reforms to the Skilled Worker route. They unpack what the White Paper might mean in practice and outline what businesses and individuals can be doing now, or soon, to respond.
 
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Transcript

Hello, I'm Andrew Osborne and I'm a partner and head of the immigration practice at Lewis Silkin. I'm joined today by my colleague, Supinder Sian, who's also an immigration partner in our London office. The topic we're talking about today is the new white paper on legal migration, which the government hopes will push down net migration to the UK by about 100,000 people a year.
 
Since the White Paper was released on the 12th of May, we've had a lot of contact from worried clients asking us about what the proposals might mean for them, especially the earned settlement and citizenship plans. They're also worried about the skills and salary thresholds for the skilled worker route being raised again and the cost impact of the changes overall. There are a lot of questions that we can't answer yet because White Papers are only high level statements of future government policy.
 
They happen right at the start of the process for making big policy changes and are a useful tool for the government to see what the reaction is to their proposals before they're set in stone. This White Paper doesn't include a lot of details on individual proposals or when they'll be rolled out, but it does give us an idea of the government's broad plans for immigration. That means businesses and individuals who are expecting to be affected by these should be considering how they should respond, either now, or soon. So, Supy, do you want to start things off with some thoughts on the settlement and citizenship changes?
 
Of course, thanks Andrew. It's clear that these new proposals would be a dramatic change from what we have now. The government says they want to encourage migrants to contribute to the economy and society before being granted settlement or citizenship.
 
To do this, they propose to change the default qualifying period for settlement from the current five years to ten years. However, a person could get settlement earlier than ten years if they can meet certain points-based criteria. The White Paper says that dependants of British citizens will remain on a default five-year route to settlement, but it is not clear whether dependants of settled persons and other people who can sponsor family members under the family routes will also stay on a five-year route or not. The plan is also to align earned settlement with earned citizenship through naturalisation. Again, a points-based approach will be used for those who wish to naturalise earlier than a default residence period.
 
Although the white paper doesn't state this, we can guess that the period is likely to be five years for partners of British citizens and 10 years for everyone else. These kinds of changes are usually made with transitional arrangements built in so that people who are already part-way through the process don't have the goalposts moved. But the Home Secretary has not given us any assurances that a type of transitional arrangement will apply here, and actually recent press reports suggest the changes may apply to anyone who has joined a settlement route since the end of 2020. It also seems quite possible that a person may be able to settle after five years under the current arrangements but then may not be able to get naturalisation as a British citizen until they reach the new default qualifying period for earned citizenship or can qualify earlier under the new points-based tests. On the one hand, the Home Office will be conscious of potential litigation here if there are no transitional arrangements or if there is inadequate consultation. On the other, they'll be wanting the policy to come into force as soon as possible, so we'll have to wait and see which way they jump.
 
Thanks Supy, you picked up on another point that lot of our clients are asking about, which is when these changes are likely to be brought in at all. My best guess is that any earlier than next Spring will be challenging. This is because formal consultation has been promised, which is due to happen later this year. Then the details of the policy will have to be agreed within the Home Office, and after that, the system will need to be designed and launched to the public, which means changes to the Home Office's IT systems and their guidance for the public and caseworkers. And all of this will take time.
 
In going through the process, the government will also need to be careful to avoid past failures. There's a long history of this dating back to when the points-based system was first introduced in 2008. A previous plan for earned citizenship was even put on the statute book under Gordon Brown's Labour government. It was due to come into effect in 2011, but was shelved by the coalition government for being too subjective and complex to administer. There's already some controversy over whether the current plans are a good idea. Professor Brian Bell, who chairs the Migration Advisory Committee, has recently said in the press that extending the path to settlement has no obvious benefit, and in fact would make it harder for people to succeed in their careers. And I'm not convinced this policy will actually lower net migration. Do you think it will?
 
Possibly in the short term, Andrew. But in the medium term, I think it's more likely to change the demographics of newcomers, but not the overall numbers. This is because once people know what the rules are, they will set up their plans to qualify for settlement and citizenship at the earliest opportunity. There are very good reasons for doing this, for example, avoiding having to keep paying high immigration related fees for extensions, having limitations on their activities because of their immigration conditions, and no access to home student fees for themselves and/or their children. Some people will also want to achieve citizenship as soon as possible for various reasons, including having the assurance of being able to come back to the UK anytime throughout their lifetime, and depending on what passport they hold, not being subject to a visa regime to visit the EU and or other countries around the world.
 
Yes, of course, we can expect people to respond to these changes in a way that makes most sense for them. I guess what people can do right now is to take up any opportunities they have under the current arrangements. So if you're eligible for settlement or citizenship, they should look to apply as soon as possible. And that will include some people who are switching into the Skilled Worker route at the start of the pandemic, because they can count the time their application was pending towards their qualifying period.
 
Also, people who are here as a Senior or Specialist Worker might want to see if it's feasible for them to switch into Skill Worker now if they think they might want to settle here in the future. We don't know what the transitional arrangements might be under the new scheme, but if you're not already in a settlement route, then you definitely won't be able to benefit from them.
 
That's a great point, Andrew, and that takes us neatly on to what we are expecting to change for the Skilled Worker route, which is quite a lot. The first thing to say about this is that there will be a return to the minimum skill level we had for eligible occupations under the old Tier 2 General route pre-Brexit, which was RQF Level 6, or graduate level. The government has kept the door open to lower skilled roles through setting up a new Temporary Shortage List. This will allow roles below RQF6 to be sponsored, initially where the Migration Advisory Committee has assessed it to be in shortage, or the government has identified it to be crucial to delivering its Industrial Strategy. Later on, it will include roles where the MAC considered it justified and where there is a workforce strategy in place to address those shortages. There could be time limits or a cap on numbers set at that stage. Sponsors using this list will also need to sign up to commitments to increase recruitment from the domestic workforce. In the longer-term, roles at RQF6 and above might be added to the list if the government considers there is an over-reliance on international recruitment.
 
There will be a sting in the tail too for workers coming to the UK under this list, which is that there will be some restrictions on bringing dependants. We don't have all the detail yet on exactly what those restrictions will be, but if they follow the same policy as is the case for care workers, they will not be eligible to come at all. In my view, I think it's far reaching for the Home Office to ban all dependants coming on all routes. So hopefully that's not something that's going to come to light across the board. Another possibility is that they're not allowed to work. Again, I think that might be difficult to apply in practice. But again, we await the Migration Advisory Committee's consultation on this. Either way, putting restrictions on dependants will hinder rather than help recruitment efforts in areas that are already recognised as struggling.
 
Also, sponsors will not be allowed to bring in care workers from abroad, but in-country switches and extensions will be allowed until 2028. There will then be a further review. These changes are response to the widespread abuse of the sponsorship system that happened since care workers were added to the route at the start of 2022, and which led to 39,000 care workers being displaced from employment. And the government has learned a more general lesson from seeing worker exploitation in the care sector. To combat this, there are plans to let sponsored workers move between sponsors throughout their time their visa is valid without having to make a fresh immigration application.
 
Lastly, the English language proficiency level for skilled workers will be raised from CEFR Level B1, or an intermediate level, to Level B2, which is considered an upper intermediate. This is a small increase for main applicants, but the bigger issue is that the English proficiency levels will be introduced for adult dependants. This will start at Level A1, or beginner, rising to Level A2, or elementary at extension stage, but jumping to level B2 at settlement, which is a significant jump, and may require the individual to undergo study to attain this level.
 
Andrew, what would you say are the main things to do or look out for with these changes?
 
Thanks, Supy. I think there's quite a few things we would suggest. For sponsors, I'd say review your talent pipeline and consider switching any Students, Graduates, Senior or Specialist Workers or other non-sponsored staff into Skilled Worker now. And don't forget that Student switches are exempt from the Immigration Skills Charge, which is due to increase by a third.
 
If you're a sponsor, you should also weigh up whether to use the new entrant discount for Student or Graduate switches and do a further extension later, or to hedge your bets against any future salary threshold rises and go for the full 5-year sponsorship at the outset. You should also be ready to see Students pushing harder for sponsorship straight away because of the plan to limit Graduate route permission to 18 months, and this will also start the clock running towards the longer period of settlement that's probably required.
 
The MAC is likely to engage with businesses on which job should be on the Temporary Shortage List and on reviews of this list in the future. So if there's an opportunity for you to participate, I would recommend that you take it. You should also do an analysis of the roles you use international recruitment for and whether these will still be eligible for Skilled Worker sponsorship or only if they're included on the Temporary Shortage List.
 
You can see which jobs are at RQF6 or above on Appendix Skilled Occupations by looking at whether they're eligible for the Global Business Mobility and Scale-up routes. You should also start to raise awareness internally of these changes and how they may impact your recruitment and training strategies, and look at the budgets for your usual operations and whether you have any upcoming big projects.
 
More internal resources will be needed for sponsor licence compliance, including on domestic recruitment commitments and adhering to any workforce strategies that are put in place. You may also want to think creatively about where in the world you choose to concentrate your operations and recruitment.
 
In parallel, we suggest you should proactively start to tighten your illegal working compliance processes. This is an issue that's only briefly mentioned in the White Paper - the plan is for right to work checks to be extended much more widely. For example, to any self-employed contractors you use, and to any people such as reception, security, cleaners or catering staff who are working in your business through an agency. You should also review and tighten your processes for ensuring compliance with any work restrictions on your staff. This is because the harder it is to use the immigration system to fill skills gaps, the bigger the temptation to ask Students and other people with supplementary work rights to work outside of their immigration permission. I'd also say that sponsors and individual workers will also need to think more strategically about settlement and citizenship pathways for sponsored workers, including considering the whole family unit. This is because there'll be a real cost and a psychological impact to sponsors and workers if a worker or one or more of their family members are not eligible to settle in the minimum time frame possible, or if they want to become a citizen and their eligibility for this is delayed. Providing support and assurance for sponsored workers will go a long way right now.
 
Thanks, Andrew. There is certainly a lot to think about with these proposals and helping businesses and your talent plan for these changes will be really important. And just to stress, these are just proposals at this stage. The law has not changed.
 
We've only had time in this episode to look at a couple of the major areas, but we'll be covering other aspects of the White Paper and how things play out with it on the Insights page of our website. We'll also cover the White Paper in our upcoming webinars and in our Autumn Immigration Law Academy. You can sign up to receive updates on all of this by clicking on the link in the notes below. We'd also love to know what you thought of today's episode, so please leave us a review wherever you get your podcasts. From me and Andrew, thank you for listening.