Current points-based system
Under the current system, non-EEA nationals do not have free movement rights and are subject to the rules of the UK’s points-based system for immigration. There are five ‘tiers’ to the points-based system. Tier 2 (General) is the main visa category for bringing skilled non-EU/EEA workers to the UK.
Generally the Tier 2 visa only caters for jobs that are classed at ‘graduate level’ (RQF level 6) or above and which pay a minimum of £30,000 per year, and for jobs which are on the official Shortage Occupation List. Tier 3, for low-skilled workers, has never been used. It has always been assumed that any need for low-skilled workers can be met from within the UK/ European Economic Area (EEA) workforce.
Appendix J to the Immigration Rules sets out the skill level and appropriate salary rate for jobs under Tier 2. Despite the demands of their difficult and often dangerous job, fishing vessel crew members are not deemed to be sufficiently skilled to fall under the ambit of Tier 2. Their work (and that of many other industries) is therefore considered ‘lower-skilled’ work for the purposes of UK immigration law.
A non-EEA national looking to come to the UK to take up a confirmed offer of work on a fishing vessel based in the UK and working outside UK territorial waters must have a transit visa. A briefing by Seafish, a non-departmental public body sponsored by the Department for Environment, Food and Rural Affairs, explains:
Non-EEA workers can come to the UK on transit visas to join ships that are currently in the UK, and which operate outside of UK territorial waters (12 nm). Because these fishers are joining ships that operate outside the UK, they do not fall under the scope of normal immigration rules, which means they do not need permission to work in the UK. However, they do need permission to enter the UK to join the ship – effectively to transit. To get permission to transit through the UK to their ship, they must obtain permission to join the ship, either by way of a visa issued overseas, or with the permission of an immigration officer at the UK border. Those provisions are necessary to allow international vessels to change crew, thus allowing fresh crews to arrive in the UK to join ships and outgoing crews to leave ships and return to their home country.
Within the fishing industry, the arrangements mean UK vessels operating outside 12 nm have been able to bring in non-EEA fishers without prior permission to work. This is a perfectly legitimate use of the immigration system.
Non-EEA nationals cannot come to work on vessels that operate wholly or mainly within the 12 nm limit (sometimes known as inshore vessels) under the transit visa provisions. People who work – or employ people to work – on inshore vessels after they have come to the UK on a transit visa, or sought to enter at the border to join a ship, are breaking immigration law.
[Seafish, ‘Working on UK fishing vessels: the legal framework and support for fishers’, November 2017]
The problem of geography
The Home Office policy is set out in its modernised guidance document ‘Seamen’. It imposes a significant restriction on the reliance on section 8 – fishing vessels with non-EEA nationals must operate outside of the UK’s territorial waters. As explained by lawyer Darren Stevenson in his briefing on the Free Movement website, this creates a “key problem for the industry” and a “unique issue in UK immigration terms”:
Much of the UK’s fishing fleet operates in the north east of Scotland. Vessels operating from these ports, if they wanted to fish outside territorial waters, need to sail 12 miles out to sea in most directions and would then be outside the UK’s territorial waters.
By contrast, a vessel operating from Lochinver on the north west coast of Scotland might need to sail 30 miles or more to leave territorial waters. Even then the vessel would be in the Atlantic Ocean, which is a far more challenging and dangerous area, generally, than the relatively shallow North Sea.
Of even more importance is that prawn trawlers, for example, operate on the basis that they drag a trawl net across the seabed to catch prawns, so only certain parts of the sea can be fished. The sea of the west coast of Scotland, containing the Sea of the Hebrides, the Little Minch and the Minch, is a particularly good fishing ground for langoustines, but these areas are all within territorial waters. So too is most of the sea around Northern Ireland. Prawn trawlers have some of the highest demand for non-UK crew.
This then creates a key problem for the industry. In some operational areas it is possible to engage non-EEA crew and in some it is not. The difference is down to geography.
[Free Movement, ‘Briefing: the immigration rules covering foreign citizens in the UK fishing fleet’, 15 May 2018]
Immigration White Paper
The Immigration White Paper, ‘The UK’s future skills-based immigration system’, published in December 2018 outlines the Government’s proposals for the post-Brexit immigration system. Many of the proposals in the White Paper are based on the Migrant Advisory Committee’s (MAC) recommendations.
The MAC has recommended lowering the skills threshold for the new skilled workers route to RQF 3 while maintaining the minimum salary threshold of £30,000 to enable incorporation of medium level skills once Free Movement ends. Medium-skilled (RQF 3-5) refers to jobs requiring skills “between A Level and Foundation Degree” according to the White Paper. Low-skilled jobs (below RQF 3) require skills at GCSE level or below.
The Immigration White Paper, page 54 states:
The MAC did not recommend an explicit work migration route for low-skilled workers with the possible exception of seasonal agricultural workers. The Government agrees with the MAC’s view that there should be no dedicated route for unskilled labour from any source, except (as described above) we will allow some flexibility for short-term workers. There will be no general use of schemes tailored to particular industries.
This is not to say that there will be no migrants in the UK undertaking low skilled work. Dependants of skilled workers; students; refugees; those coming on a family visa; or a youth mobility visa; are all allowed to work in the UK. The MAC notes there are currently 170,000 non-EEA workers employed in occupations below the current minimum for Tier 2.
[HM Government, ‘The UK’s future skills-based immigration system’, 19 December 2018]
The White Paper addresses arguments for an immigration system that varies by region and makes clear the Government is “committed to a single, skills-based future border and immigration system”.
Page 55 states:
As now, future immigration policy will be reserved across the UK. The MAC considered the case for regional immigration policies but did not recommend introducing more regional variation. We agree with this approach.
Nonetheless, the Scottish Government and businesses in Scotland can, and have, influenced the determination of the UK-wide list of shortage occupations and have assisted the introduction of a Scotland specific shortage occupation list to cater for its particular labour market needs. This will continue after EU Exit. We will invite the MAC to consider whether the composition of the UK wide Shortage Occupation List (SOL) needs to be different for Northern Ireland and we will examine the case for a similar approach in Wales, and also recognise the unique position of Northern Ireland as the only UK nation with a land border with the EU.
[HM Government, ‘The UK’s future skills-based immigration system’, 19 December 2018]
Government response to industry’s concerns
The issue of visas for non-EEA citizens in the inshore fishing industry was debated in a Westminster Hall debate on 17 July 2018 [Non-EEA Visas: Inshore Fishing, WH Deb 17 July 2018 c21-47].
Responding for the Government, on behalf of the Immigration Minister, the Minister for Security and Economic Crime, Ben Wallace said:
“As a Home Office Minister, I understand the industry’s pressing need, but I also understand that that need is not unique to fishing but is clearly present in agriculture, whether that is soft fruit or other parts. It is also extant for other skills… We have to tackle the skills issue in a way that reflects the pressing need, and invest in our domestic workforce at the same time. The Home Office should be open to looking to relieve some of those pressures temporarily, however, as it has in the past. I will press the case for doing that for fishing in the Department and to the Immigration Minister, as they are doing for other parts of the economy that face those issues.
As we approach leaving the European Union, it will be easier to strike the balance between immigration policy and domestic skills policy. The Government will obviously be listening to the industry and stakeholders about that to inform a new immigration Bill, in line with the new fisheries strategy that the Department for Environment, Food and Rural Affairs published, which looks at what we will do with our fisheries after Brexit to ensure that we have the skills to match.
In the past, there have been successful short-term schemes, but we need to stimulate our domestic skills base as well and ensure that the terms and conditions are met in a way that looks after people who come here to work. In offshore fishing, where there has not been that restriction, we have seen considerable exploitation of workers in some cases.
We have to listen to the independent Migration Advisory Committee, which has previously looked at the issue. It is looking at several factors again as we approach Brexit, and we will be open to its research-based views and suggestions. The Immigration Minister has obviously heard the previous calls from hon. Members, and I will ensure that this debate is reflected to her when I see her later today.
Hon. Members should not think that the Government do not take the importance of the fishing industry seriously; we absolutely do. We do not think that people working on boats are unskilled—clearly, they are. I have been up to some of the fishing boats at places such as Fraserburgh and Peterhead, and my seat neighbour Fleetwood has one of the main fishing processors in England, so I am not blind to the industry. The tier 2 visa is for work at a graduate level. As a non-graduate myself, perhaps there is something to examine in the way we define skills after Brexit.”