Author: Melanie Gower
Recent reforms to the UK’s points-based system for work and study immigration have excluded doctors and nurses from the annual limit on the number of skilled worker visa sponsorships available. Wider-reaching changes to the system are expected when the Government implements a post-Brexit immigration policy.
The UK’s “points-based system”
Points-based immigration systems select migrants based on having certain valued attributes, such as qualifications, occupation and language skills.
A “points-based” system for non-EEA national work and study visas was launched in the UK in 2008. Visa eligibility is determined by satisfying a set of mandatory criteria, to which a fixed number of symbolic points are attached. This has arguably resulted in a system which is points-based in name only.
How the UK’s points-based system works in practice
There are five ‘tiers’ to the points-based system. These cater for high skill/high value migrants; sponsored skilled workers; low-skilled workers; students; and temporary workers. Each tier contains several different visa categories (and some sub-categories), with varying associated conditions and mandatory eligibility requirements. The tier for low-skilled workers has never been used, because it has been assumed that any need for low-skilled workers can be met from within the UK/European Economic Area (EEA) workforce.
Restrictions on skilled worker visas
Tier 2 (General) is the main visa category for bringing skilled non-EU/EEA workers to the UK. It is designed to incorporate various protections for resident workers, such as by requiring the employer to first try to recruit from within the resident workforce.
In addition, the number of new visa sponsorships available is limited to 20,700 per year (subject to various exceptions). A separate points test is used to determine eligibility for restricted Tier 2 visa sponsorships. This has traditionally favoured shortage occupations and those attracting the highest salary. Demand for permission to sponsor skilled workers has outstripped supply in every month since December 2017. In July 2018 the Government acted to exempt doctor and nursing posts from the limit, in recognition of the difficulties that the limit was causing for NHS employers, and in a bid to free up spaces for other sectors. Stakeholders have broadly welcomed the change, whilst cautioning that it may prove to be a temporary and insufficient fix to a more fundamental problem with the ‘cap’ on skilled worker visas.
Stakeholders’ criticisms of the system
There have been criticisms that over time, the points-based system has failed to live up to its stated objectives such as simplicity, transparency, objectivity and flexibility. It has come to be widely regarded by individual applicants, sponsors, immigration lawyers and the judiciary as unduly complex, burdensome, costly and ill-suited to the needs of its users.
For example, the Immigration Rules and policy guidance for each visa category are extremely lengthy and prescriptive, and subject to frequent changes. The emphasis on ‘hard’ education and professional qualifications and salary thresholds has posed particular difficulties for certain sectors. Various exceptions and workaround solutions have been introduced to accommodate the needs of specific sectors, but arguably at the cost of increasing the complexity of the system.
An uncertain future?
The Government has ruled out introducing a pure points-based system to control EU migration post-Brexit, arguing that it would not give it sufficient control over who was eligible to come to the UK.
The Home Office has also recently suggested that the terminology of ‘tiers’ and ‘points-scoring’ is “outdated”, raising the possibility that a more fundamental overhaul of the system might be in the pipeline.
The Government has commissioned the Migration Advisory Committee to advise on the labour market implications of the UK leaving the EU and a future immigration system. The Committee is due to report to the Government by September.
A Government White Paper on a post-Brexit immigration system is not expected before the end of this year. In the meantime, there is considerable debate about what specific changes to economic immigration routes could or should result from leaving the EU. It has been suggested, for example, that the system may need to adjust to the ending of free movement rights for EU nationals by increasing some of the visa limits and extending opportunities for low-skilled immigration in certain sectors. July’s ‘Chequers Agreement’ leaves open the possibility of offering some reciprocal preferential work/study arrangements to citizens of EU Member States as well as “other close trading partners” in the future.