Resources Reports Points Based Immigration System Briefing 2020 You can download a pdf of this briefing here. The Government has announced its new approach to immigration for skilled workers to be introduced from 1 January 2021. The announcement includes altering the existing system for Tier 2 skilled workers, introducing points that applicants will need to accrue in order to be eligible to enter the UK. After the end of Freedom of Movement for EEA Citizens on 30 June 2021, this system will apply to prospective immigrants from all over the world. The announcement focusses only on one small area of immigration policy, leaving most of the system – enforcement, rights to bring dependents, settlement criteria, asylum system, and more – unchanged. The Government has promised that these questions will be addressed “in due course” and that the new system will be introduced with an overall view to streamlining and tightening the existing system. The Government claims that overall migration numbers will be reduced through the new immigration system. In particular, it seeks to achieve this by removing any general route for low-paid (so-called “low-skilled”) migrants to settle in the UK. The key exception to this will be the Seasonal Agricultural Workers Scheme, which has been expanded from its initial pilot scheme for 2,500 workers to 10,000 per year. Other worker shortages will be covered by the over-3 million EEA Citizens already living in the UK, and the roughly 20,000 young people per year who come to the UK through Youth Mobility Schemes. The government has confirmed that it will follow the recommendation of its Migration Advisory Committee (MAC) to include school-leaver level skilled immigrants into the Tier 2 band that was previously reserved only for graduate level applicants. This means a drop in the set salary threshold for applicants at £25,480 from £30,000. There will be no cap on numbers in this route. Low-Skilled (Low-Paid) Migrants While until now migrants from the EEA countries have been able to enter the UK regardless of their level of pay the new system does not propose any route at all for migrants who do not reach the salary criteria. This means that many vital – and far from unskilled – jobs in our society, including care work, chefs, construction workers and others will no longer have any route at all into the country. This will deny our communities the care and professionalism contributed by migrants in these areas, to our own detriment. It is unlikely that shortages created by the new system will be able to be filled in the immediate term by businesses simply “adapting” as they are urged to do in the Government’s Statement. A Pilot Seasonal Agricultural Workers Scheme was introduced on 6 March 2019, initially for 2,500 workers to come to the UK for a 6-month period. After six months they are required to leave and are not entitled to apply to return again for a further “cooling off period” of 6 months. The scheme is still within its initial two-year pilot timeframe and no assessment or evaluation of its impacts have been made or published, yet the Government has quadrupled the numbers on the scheme to 10,000 per year. The lack of scrutiny and evaluation of this scheme before its expansion is particularly concerning. People’s lives do not always fit neatly into 6-month brackets that can be easily uprooted and relocated whenever the Government sees fit. A scheme with no flexibility for people to extend their stay will inevitably increase the risk of non-compliance. There are a multitude of reasons why a person may fail to leave at the end of their visa period, especially if they have been in a situation that exposes them to the risk of exploitation and trafficking. People in this situation used to benefit from EU Freedom of Movement which means that their rights were protected and that they could seek alternative employment, forge relationships and build lives in the UK. Now, anybody who does not comply with the strict 6-month regulations will become undocumented and subject to the Hostile Environment, losing their right to work, rent or remain in the UK. The risk of trafficking in schemes such as this has historically shown to be strong. In 2019 a similar scheme in Spain was found to have produced severe exploitation, trafficking, sexual abuse and harassment of Moroccan strawberry-pickers. Workers here on a strict six-month visa will have no meaningful way of challenging abusive employers. While the scheme does not formally “tie” employees a single employer through their visa, in practice it is unrealistic that any worker facing poor conditions on this scheme would have meaningful access to redress or even to the possibility of moving to an alternative employer. Bringing a case of exploitation before an employment tribunal requires both the knowledge and resources of how to do this, but also far more time than these people have. Workers housed on the premises of their employer, on short-term visas and with potentially low levels of English do not have a realistic prospect of simply leaving a job because of poor conditions and finding work elsewhere. The Labour Inspection standards in this country fall far below what is necessary to protect even British workers and those with a secure and long-term immigration status from abuse and exploitation in lower-paid and what the Government refers to as “low-skilled” work. FLEX and LAWRS have carried out recent research which shows that underpayment, refusal of sick leave and holiday leave, as well as verbal abuse and poor safety conditions are endemic throughout these sectors. Meanwhile the Labour Inspectorate does not provide meaningful protection for workers as it simply does not have the remit or the resources to carry out proactive inspections in high-risk sectors. While the government has confirmed that all migrants’ access to in-work benefits will be limited unless they have obtained Indefinite Leave to Remain, migrants in the low-skilled category have no prospect of obtaining permanent settlement. Being extremely low-paid and being denied access to public funds essentially leaves them entirely reliant on meagre salaries to avoid destitution. This represents a further barrier to achieving any redress from issues around poor employment conditions. RECOMMENDATIONS Multi-lingual and comprehensive information about labour rights must be provided to all migrants taking part in such a scheme. The Labour Inspectorate must be provided with the remit and resources to actively monitor conditions in high-risk sectors where vulnerable migrants are employed. Multi-lingual and confidential complaints mechanisms with no immigration enforcement presence must be made easily accessible to migrants on this route. Worker representation on a board to set and enforce standards for pay and conditions on this scheme. Migrants in temporary low-skilled visa routes should have access to public funds. No arbitrary “cooling off” period should be attached to visas. Migrants, regardless of pay, should have access to flexibility and the possibility of extending their stay where they choose to and continue to fulfil the criteria of their visa. EU Settled Status The government claims that EEA Citizens who are already in the UK and who obtain Settled Status will be able to make up for the lack of new low-paid entrants to the UK needed in various industries. This belies the fact that EEA Citizens in the UK currently have an even higher employment rate than local British people. When the vast majority of EU migrants obtaining Settled Status are already in employment it seems highly unlikely that they will also be able to fulfil new jobs where new immigration is lacking. Any EEA Citizen who fails to apply by the deadline for Settled Status will lose their lawful right to remain in the country and be subject to detention and deportation. The government proudly emphasises that 3.2 million applications have been made to the scheme but does not note that the number of EEA Citizens living in the UK is unknown, and thus it will be impossible to know if or when all of them have secured their status. Furthermore, the Policy Statement confirms that people with EU Settled Status will not receive a physical documentation to demonstrate their status, but only an online one and that this will eventually be rolled-out to all migrants. Within the government’s Hostile Environment that out-sources border enforcement to members of our communities, a physical document proving status can be the difference between being able to rent a home or not. RECOMMENDATIONS Continue to provide all migrants with a physical document proving their legal status Introduce a declaratory scheme for EU Settled Status What is missing The Government is attempting to brand the “points-based” system as a whole new approach to immigration policy, but in fact there is little change here for most groups of migrants. There is a real urgency that the Government produce detailed policy proposals to cover all aspects of the immigration system well ahead of its Immigration Bill in order to enable proper scrutiny. Our current immigration system traps people in cycles of misery, tearing families apart through the minimum income requirement for families, forcing people who have lived here since childhood into detention and onto dangerous deportation flights. All this while pricing people out of access to legal representation and fair and accessible pathways to settlement and citizenship. These are the issues of fairness that the Government’s new immigration system must address, and which should be taking priority over the cosmetic rebranding of the points-based system. The Migration Advisory Committee Recommendations In January 2020 the independent Migration Advisory Committee (MAC), commissioned by the government, published detailed research on the “points-based system”. The report overwhelmingly rejected the government’s proposal, finding that a “points-based” system would only mean making largely cosmetic changes with little impact on the substance of visa requirements. Nevertheless, the Government has pursued this cosmetic and largely meaningless approach. The MAC advised that a points system could more usefully be used to introduce flexibility into the UK’s rigid and restrictive settlement criteria. In other countries, such as Australia, where points-based systems are used, successful applicants are usually granted a direct path to permanent settlement, unlike in the UK. Home Office officials have stated that a review of resettlement criteria will be carried out, although no further detail has been provided. JCWI welcomes a review of resettlement criteria, particularly as the Government has indicated that this will remain largely unchanged, meaning that those who do not reach the salary threshold will have fewer or no secure routes to settlement in the future. Currently, a person must usually have been lawfully resident in the UK for a minimum of 5 years and be earning a minimum salary of £35,450 to be eligible for Indefinite Leave to Remain. This excludes many workers in the public sector where pay-scales are fixed. Not only is the system onerous, but it is placed further out of reach of many applicants because of the extremely high fees charged for applications, in addition to the immigration health surcharge, and an immigration skills surcharge placed on employers. The government has no plans to change this approach to fees and charges. RECOMMENDATIONS The Government must implement the recommendation of the MAC for a full, independent and transparent review of the rigidity and restrictiveness of routes to settlement in the UK for migrants in all parts of the system. This review should include an assessment of the proportionality of the cost of obtaining settlement and citizenship.