What’s on the horizon for business immigration in 2020 and thereafter?

Following the Conservative victory at the recent general election and the delivery of the Queen's Speech on 19 December 2019, the governments' priority is to ensure that the UK leaves the European Union, with a deal, on 31 January 2020. Whilst a deal to take us passed 31 January 2020 has been agreed, the UK and Brussels are braced for 11 months of crunch talks on trade deals before the next cliff-edge at the end of this year. 

There were two main immigration bills announced in the Queen's Speech, which are to be put forward in 2020 and this article sets out their key points. In summary:

• there is a risk that the transitional period could be extended for up to two years;
• free movement of people is set to cease on 31 December 2020;
• Irish citizens will retain their right to live freely in the UK (subject to certain exemptions as noted below); and
• the latest developments on the UK's future immigration system have started to emerge (as detailed below).

The Transitional Period

The Queen's Speech announced that the European Union (Withdrawal Agreement) Bill 2019-20 ("WAB") would be put before the government and the WAB has passed all stages in the House of Commons and House of Lords. The WAB will now seek Royal Assent from the Queen and approval from the European Parliament ahead of the 31 January deadline. The WAB is meant to ensure a smooth winding down of current UK-EU arrangements, during a specific transition period, that will last until 31 December 2020. During this transition period, the UK will be treated as if it were still a Member State, with all EU legislation, rules, free movement and court decisions continuing to apply. This re-introduced WAB shares most of the key clauses and schedules of the original withdrawal agreement bill (which was put forward in the previous Parliamentary session but fell when Parliament was dissolved prior to the General Election); however there are some important changes businesses should be aware of.

The most relevant to this article are namely that the government can no longer request an extension to the transition period; instead a newly established UK-EU Joint Committee will have the power to approve a single, one-off extension to the transition period, provided that this is determined before 1 July 2020. The Conservatives' are adamant that this will not be necessary but, there remains a clear possibility that the transition period could get pushed back further for up to one or two years. In addition, wording has been entirely removed from the WAB which provided for the protection of EU-derived workers' rights. However, the Queen's Speech announced that protection for EU workers' rights post-Brexit would instead be included and enhanced in another bill. The government has since added to this assertion by stating that removing these provisions from the WAB was simply a move to speed up the progress of the WAB moving through Parliament. We shall continue to monitor and report on the WAB as it progresses through the Parliamentary stages.

The Governments' proposals

The Queen's Speech also announced that the Immigration and Social Security Co-ordination (EU Withdrawal) Bill (the "Employment Bill") will be put before the government. The Employment Bill will provide the legal framework for the future immigration system once the UK has officially left the EU. The Employment Bill will end free movement of EU citizens to the UK after 31 December 2020 and lay the foundations for a new points-based immigration system from 2021. Importantly, the Employment Bill respects and upholds the historical cultural links between the UK and Ireland so that Irish citizens will not require permission to enter or remain in the UK after 31 December 2020. The Government has indicated that it intends to maintain the position that Irish citizens will not be deported unless there are truly exceptional circumstances such as, criminality or presence not being in the public interest.

The Employment Bill also proposes to increase the annual quota for the piloted Seasonal Agricultural Workers Scheme from a mere 2,500 to a more realistic level of 10,000 allowing for more non-EU workers to come to the UK to complete short-term agricultural work. Additionally, the Conservatives' look set to see through its pledge to increase the Immigration Health Surcharge ("IHS"), which individuals must pay upfront for the estimated use of the NHS for the duration of their visa. The IHS is currently £400 per migrant per year (£300 a year for students and those on a Youth Mobility Scheme visa). The government is expected to increase the IHS to £625 per migrant per year. This is likely to have a significant financial impact on migrants planning to move to the UK, particularly if they have dependants who must also each pay the IHS.

The future UK immigration system

The actual details of the UK's future immigration system are unlikely to be set out in the Employment Bill, instead such details will be published in new Immigration Rules which are expressed to be similar to the 'Australian-style points-based system'. The Prime Minister has recently announced very basic details of what the government is considering post 1 January 2021 for individuals wanting to come to work in the UK. The Prime Minister has stated that there would be three categories of visas. The first will be for 'exceptional talent' such as people with world leading awards who could enter the UK without needing a job offer. The second category would be for skilled workers, including the new NHS visa, for those who have a job lined up and can establish a certain number of points. The final category will be for low skilled workers, where there are labour shortages but most notably, this visa will not lead to permanent residency.

Whilst this announcement will reassure businesses that the government are considering and planning to address low skilled workers along with the NHS in the UK's future immigration system, understandably, businesses are still likely to be nervous that the continued lack of detail means they still don't know who they would be able to hire from outside the UK or on what terms from the end of 2020. It is therefore proving increasingly difficult for businesses to accurately plan their future recruitment strategies when such uncertainty still remains.

We will continue to monitor the developments of the WAB and the Employment Bill over the coming months and provide further information on the UK's future immigration system as soon as more details emerge.

If you would like to discuss how Brexit will impact your workforce or would like to discuss any other aspect of this article, please get in touch with Gemma Robinson, Associate on [email protected] or +44 3303 116 793.