EU Settlement Scheme, Immigration Rules consolidation and a new dawn in immigration policy?

EU Settlement Scheme – what's the latest?

As we move closer to the UK's planned exit date from the European Union, preparations are intensifying to ensure that the Settlement Scheme is in the best possible shape for its full "go live" date in March 2019. 

Various stages of testing have so far been carried out with fairly limited categories of eligible applicants.  However; the largest test phase to date is now in operation, with (i) EU nationals and (ii) family members with a biometric-chipped Residence Card marked "EU Right to Reside" now eligible to make an application under the Scheme. 

During the current test phase, the Home Office's ID verification app must be used in order to make an application.  This still poses a problem for a number of potential applicants, as the app remains incompatible with Apple devices and is therefore only available on the Android platform.  When the Scheme becomes fully operational in March 2019, it is envisaged that applicants will be able to submit hard copy documents – as opposed to scanning copies via the app – should they wish to do so.

Whilst the app's compatibility remains a source of frustration, EU nationals have recently received more positive news.  In a statement to Parliament earlier this week, Theresa May confirmed that the planned £65 application fee under the Scheme will be scrapped.  This will also be a welcome development for the significant number of employers that had already publically committed to picking up this cost on their employees' behalf.

A new immigration system for the UK?

As a result of the UK's membership of the European Union, there are essentially 2 work-based immigration routes operating in parallel within the UK.

On the one hand, we have the system that applies to EU, EEA and Swiss nationals; where nationality is the main eligibility criteria and an individual's skills/attributes are irrelevant to their immigration status.  On the other hand, we have the system that applies to non-EU/EEA/Swiss nationals; where certain advertising, skill level, salary and maintenance criteria (to name but a few) all must be met before such individuals will be permitted to work in the UK.

Under proposals recently issued by the Government in its White Paper, a new post-Brexit immigration system would be rolled out from 2021 onwards that would effectively bring an end to free movement and see EU, EEA, Swiss and non-EEA nationals brought under the same umbrella.

Other key elements of the proposals include:

• The minimum skill level for a role to be sponsored reducing from RQF6 (degree) to RQF3 (A-level);
• The abolition of mandatory advertising requirements under the Resident Labour Market Test;
• Consultation on the current minimum salary level for sponsorship of £30,000p/a;
• Reform of the sponsorship process to make it more user friendly, simpler and affordable for users; and
• Implementing a transitional low skilled worker category in order to assist employers in moving away from low skilled EU labour. Workers under this category would not require to be sponsored by a particular employer, but could only work in the UK for 12 months. They would then have a 12 month cooling off period outside of the UK before being eligible to apply again under this category.

The Government has promised to carry out a year of "extensive engagement" before publishing the proposed Immigration Rules setting out the detail behind the future system. 

In the meantime, a staff audit to establish a business' reliance on EU/EEA/Swiss staff remains a prudent step.  The proposals suggest that a Home Office Sponsor Licence will be required to employ EU/EEA/Swiss nationals that do not hold Settled or Pre-Settled status (under the EU Settlement Scheme) from 2021 onwards.  As such, consideration should be given to whether such a Licence would be beneficial for your business moving forward.

Consolidation of the Immigration Rules

The Law Commission has commenced a process of public consultation in relation to the UK's Immigration Rules.  Key elements of the proposals include:

• Consolidation of the existing Rules, in order to make them easier to follow for applicants;
• Reducing areas of overlap in order to improve clarity; and
• Limiting the number of times per year that the Rules can be changed. As things stand, the Immigration Rules are often amended multiple times per year with minimal advance notice; with research carried out by the Guardian suggesting that an incredible 5,700 changes have been made to the Rules since 2010.

Whilst the Law Commission's review and consultation will not consider matters of substantive policy (which will continue to sit with the Home Office), it is nevertheless hoped that significant improvements can be made to both the language and format of the Rules.

Consultation closes on 26 April 2019.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2019. Specific advice should be sought for specific cases. For more information see our terms & conditions.