What next for UK immigration policy?

London_Mace_A_141219-6799-IMG_6430Amidst growing concerns that Brexit could widen the UK engineering skills gap, business immigration lawyer Annabel Mace considers what kind of work visa system might work for UK industry.

Following the Brexit vote, it now seems likely that we are facing an end to EU Free Movement (either completely or in its current form). This will inevitably mean restricted access to an EU talent pool which has to date provided much needed skills for the UK engineering sector – employers are understandably concerned.

The key question now is whether the future UK visa system will be crafted in a way that will reduce net migration (to satisfy those that voted to leave the EU) but without jeopardizing engineering companies’ ability to succeed and grow? And, more importantly, what will that visa system look like?

Although certainly a blunt instrument, the current UK work visa system offers a fair amount of control and can be adapted

The future of UK immigration policy is still unknown although the Prime Minister has ruled out an ‘Australian-style’ points based system on the grounds that it would provide insufficient control on numbers. The UK already has a work visa system which is still labelled as ‘points based’ except that the points element which originally enabled highly skilled non-EU nationals to come to the UK without a job offer (on the strength of qualifications, work experience, earning potential and age) has all but disappeared. UK work visas are generally now only issued through licensed employers for a specific skilled role with a minimum prescribed salary. Unless the employee is transferring from a linked employer abroad or the role is considered to be a ‘shortage occupation’, the employer must usually demonstrate that no suitably qualified resident worker is available to fill the role. There is currently an annual cap of 20,700 on some work visas (but it doesn’t apply to intra-company transfers, high-earner roles and to those switching from another work category from within the UK).

In short, although certainly a blunt instrument, the current UK work visa system offers a fair amount of control and can be adapted. And, leaving aside the question of whether we will have to leave the Single Market to be able to restrict EU migration, we could see our current system being modified and applied to both EU and non-EU nationals. If that is the case, our realistic best hope for a system which might protect the engineering sector would:

  • Allow for a properly considered increase on the current annual visa cap of 20,700 taking into account the end EU Free Movement and acknowledging the continued material need for the UK engineering sector to recruit the brightest and the best from around the world
  • Include a more sophisticated mechanism for identifying genuine skills shortages so that work visas are readily available to those employers that need them most, without having to go through a tortuous and artificial resident labour market test. The shortages would have to be regularly updated – the Home Office’s current Shortage Occupation List was last reviewed in 2013
  • Avoid restricting visas on the misconception that a role is only highly valued if it is highly paid (clearly a key concern for the engineering sector). This approach, amongst other blunt restrictions, was put forwarded by David Cameron’s Immigration Taskforce but, thankfully, rejected by the Government’s own Migration Advisory Committee in 2015 (you can see how it might creep back in, though)
  • Continue to allow talented international students who graduate from UK universities to switch into the work visa system from within the UK by implementing an exemption from the resident labour market test (if necessary, only in certain role/sectors including engineering)
  • Introduce work visas for lower skilled but difficult to fill roles (the UK visa system originally had a category for this purpose but it was never activated in light of EU migration). We must also, of course, do more to enable British workers to take up such roles (as well as skilled ones) but that is not an issue that will be solved overnight and should not get in the way of sensible immigration measures.

In the meantime, the continued uncertainty over the position of EU nationals currently working in the UK will undoubtedly contribute to a drop in both retention and recruitment even before we leave the EU. The Government should give an immediate and unequivocal reassurance that EU nationals already working here will be allowed to stay. This is the only practical approach in any event, given that many of them will acquire permanent residence within the next couple of years, if they have not already done so. More importantly, assessing the status of those without permanent residence (and potentially trying to enforce their removal) will create an insurmountable bureaucratic burden for the Home Office we can ill afford, particularly in light of the task ahead.

Annabel Mace is head of business immigration at commercial law firm Squire Patton Boggs