New Points-Based System in 2021

12 August 2020

European free movement will end on 31 December 2020 and we will be entering a brave new immigration world on 1 January 2021.

The Home Secretary has recently published a detailed summary of the new immigration landscape from that date onwards, in which she states that EEA nationals and non-EEA nationals will be treated "equally". This, although it sounds like of some sort of equal opportunities programme, is not really so. It is more to do with the fact that EEA nationals will from that date lose their considerable immigration advantages and also, for that matter, Turkish nationals are likely to lose the advantages that they currently hold under the Ankara Agreement, which is an agreement under EU law.

There will be a new points-based system which will keep many of the features of the current one, but which will also incorporate some important changes, particularly in the Tier 2 sponsorship scheme. The current "Tier 2 Skilled Workers" route will be re-branded (as is the Home Office’s recurring habit) as the "Skilled Workers" route, but this momentous change is not all.

The historical trend in job level will now be reversed. Previously, required job levels for Tier 2 got higher, and currently a job must be at RQF level 6 to qualify for a Tier 2 visa - roughly speaking a Bachelor’s degree level job. This does not mean that the sponsored worker must necessarily hold a relevant Bachelor’s degree, but it does mean that the job itself must be at that level.

Now the job level is in many cases being lowered to RQF level 3 (which is something like A level standard), which will open up a large number of lower-skilled jobs hitherto not permitted. Only Intra-Company Transferees will still have to meet the RQF level 6 requirement.

Another major change is that the resident labour market test (RLMT) is being abolished. This is a test that in many cases requires the job in question to be advertised so that resident workers in the UK can apply for it. This is so that a non-EEA national is not employed at the expense of a better-qualified resident worker so, as a general principle, employers should only engage with Tier 2 sponsorship if it is really necessary for their business needs.

By removing the RLMT it might seem that the Home Secretary is thoroughly undermining this principle. But is she really? Well, evidently she does not think so. The published statement explains that "sponsors [eg employers] must still be seeking to fill a genuine vacancy which meets the skill and salary thresholds of the new route. Roles cannot be created solely to facilitate immigration of a specific migrant to the UK".

This sounds rather vague, and we cannot imagine how it will be operated in practice. Will there be any kind of rule or policy that prevents or inhibits an employer from sponsoring an overseas national rather than a resident worker? Well, the detailed rules and policies have not been published yet, and we shall have to wait and see.

Anyway, another significant change is a large re-vamping of the Tier 2 salary levels. There will be a new more flexible scheme, whereby points can be "traded", to use the Home Secretary’s term. This means that, for example, somebody who earns a salary as low as £20,480 can still qualify for a visa if the job is in a shortage occupation or if they have a relevant PhD qualification, and there are various possible permutations for collecting sufficient points where the job offers a higher salary level than £20,480.

And yet another significant change is the removal of the annual "cap" in numbers for Tier 2 General migrants. Sometimes the cap was not reached, but it did in any case constitute a further layer of complexity. From 1 January 2021 there will be no limit on the numbers of Skilled Workers allowed to come to the UK.

One of the great advantages that EEA nationals hold at the moment is that they are not subject to any English language requirement when they apply for a UK visa - such a provision would be contrary to EU law. This, not surprisingly, is going to change, and all Skilled Workers will need to have satisfied the English language requirement in one way or another.

But by and large it is right to say that the new scheme is considerably less restrictive than the current one - and, it would appear so far, considerably less complex.

We have above summarised the most important changes for Tier 2 and it is roughly correct to say that other aspects of the current scheme are being retained. But if you want more detailed information about this we at Garth Coates Solicitors will be able to advise you.

Garth Coates Solicitors