Brexit and Immigration

At last Brexit has happened. Some will breathe a sigh of relief and others will breathe a sigh of horror but at any rate it is done.

But perhaps the sigh of horror will not be as strong as it might have been. So far the dread prospect of no deal Brexit has been avoided, and this has made things a bit easier for EEA nationals and their family members (of whatever nationality) than they would have been otherwise.

Such people who have established residence in the UK by 31 December 2020 will – unless things now go horribly wrong – be allowed to stay here as long as they have made an application under the EU Settlement Scheme by 21 June 2021. This application is free and fairly straightforward.

It is fair to say that the Europeans have historically had very generous treatment under EU law as far as immigration conditions are concerned. They have some respects held great advantages over British citizens living in the UK. This might seem counterintuitive but it is only part of the equation: British citizens have had exactly the same rights in the other EEA countries that EEA nationals have had in the UK and, looked at in that way, there was an overall equality.

Anyway, this interesting field of knowledge is ultimately doomed to no more than historical interest: after 31 December 2020 (which marks the end of a “transition period”) things are likely to be different. EEA nationals are going to be treated similarly to other overseas nationals and they will need visas to come to the UK to study, work or join family – and of course similar rules are likely to come into place for Britons wanting to go to Europe.

(This does seem slightly confusing, because those who have established residence in the UK by 31 December 2020 and have not yet applied for status before the 21 June 2021 deadline might presumably still be allowed come and go. We will have to wait and see how this works out.)

So when EEA nationals and their family members come up against the full force of UK immigration law, what will it look like?

The Prime Minister has often talked about a new “points-based system” and, more specifically, an “Australian-style points-based system”, and this seems to be something that may have been inspired by forthcoming Brexit.

These terms may annoy immigration lawyers because they do not always have any obviously clear meaning. A points-based system seems, in recent practice (as in the current “Points-Based System” (“PBS”)), to be simply a system whereby for each required attribute you can score a set number of points and if you score those points in every category you succeed. It would be exactly the same if you had a list of requirements and a Yes/No tickbox for every requirement and if you could tick every Yes you would succeed. The “points-based” description in this sort of situation does not have any strong or useful meaning.

Now, some readers may remember an ancient visa scheme called the “Highly-Skilled Migrant Programme” (“HSMP”), which really was something like a points-based system. You might not score any points, or only a low number of points, in some categories, but you might be able to make up for it with high numbers of points in other categories. The categories were for age, educational achievements, previous earnings, English language ability and so on.

It sounds good on paper but the Home Office abolished this scheme because, they said, migrants who qualified under the scheme were in many cases taking unskilled jobs, and not the skilled jobs that the scheme was designed for, and this evidently upset them.

It is a bit of problem, and it brings to mind another issue. Europeans could just come to the UK and work, at a job at any skilled level. So when the UK needed unskilled labour there was a ready supply. This will of course no longer be the case after the transition period, and it may be that the Home Office will have to create a new unskilled worker visa – or activate Tier 3 of the Point-Based System, which was never activated and which was supposed to be for such workers.

The way that the Prime Minister is talking, he seems to be proposing something like the old HSMP scheme. Presumably the Home Office will try and modify the new scheme in ways that avoid the previously perceived problems. We shall have to wait and see about this as well.

One thing at any rate is for certain: come 2021 the loss of free movement rights for Europeans is going to thoroughly change the working visa landscape.