Described by David Davis as “a landmark moment”, the passing of the EU Withdrawal Act in June allowed Theresa May to take a breath and perhaps to issue a sigh of relief. However, what is clear, is that there are still many legislative hurdles for her to jump and policy details that need to be ironed out. Despite the issues associated with getting it passed, the Act itself, which selectively transfers EU law into UK law, is just the start. The government has estimated that around 800 pieces of separate secondary legislation will need to be agreed in addition to a number of other bills from across the different departments of state.
One of the most important, most contentious, and most lobbied-over of these, is the still to be published Immigration Bill, originally announced in the 2017 Queen’s Speech. It will set out how the UK’s immigration system will function after Brexit, given the ‘free movement of people’ principle will end, along with our EU membership, once the transition period ends in 2020.
The Bill was due to be preceded by an Immigration White Paper – a formal statement of government policy – originally expected in October 2017, which has been repeatedly delayed and is now expected to be published soon, reportedly “after the Summer Recess”.
Alongside the preparation for the White Paper, the Migration Advisory Committee (MAC) – the independent body that advises government on migration – is gathering evidence on the impact of Brexit on the labour market, which is intended to feed into the White Paper. Its report is due sometime in September.
A variety of interest groups have already voiced their opinions on the potential implications of the different possibilities and more seem likely to add to the mix. Commenting in the media this week, the Royal College of Physicians suggested immigration changes after Brexit could triple admin costs for the NHS to hire overseas workers, seeing the bill grow from £150 million a year to £500 million.
But which options will the government and the MAC be weighing up? And which is most likely to be brought forward? Some of the possible options are outlined below:
The Leave campaign proposed a points-based immigration system during the referendum. Under this system, immigrants would be admitted if they pass a points threshold, awarding points to candidates for ‘desirable’ criteria such as age, occupation, education and work experience. Australia and New Zealand both operate variations of this system.
Proponents argue it would end the current ‘discrimination’ against non-EU or non-European Economic Area (EEA) nationalities, and that it would also attract more highly skilled workers. Nationality would no longer affect eligibility to work in the UK, as workers from the rest of the world would be directly competing against European workers.
This system is attractive to liberal Leavers who propose the UK adopt a low tax, low regulation, ‘Singaporean style’ economy, rather than those looking to primarily reduce immigration flows. Theresa May has argued the British people voted for more control of immigration, which a points-based system “does not give you”. So, this model is unlikely to be taken forward.
Regional immigration system
Another system proposed during the referendum campaign is based on varying regional quotas across the UK to ensure local skills shortages can be addressed. Under this model, employers may be required to register their employees’ place of work and ensure their home address is a commutable distance away. This would create some rigidity in the labour force as migrant workers would not be able to be redeployed to another part of the country without affecting each region’s quotas. Canada operates a similar system.
The proposal has some high-profile supporters, with prominent Brexiteer Michael Gove suggesting he was in favour of a regional model during the referendum campaign. Since then, Scotland’s First Minister, Nicola Sturgeon, has demanded new powers over immigration and London Mayor Sadiq Khan has called for a ‘London visa’ so businesses in the capital can continue to hire from abroad. Arch remainer Chukka Umuna MP has also indicated that he supports the introduction of a regionally-based immigration model.
While a regional model has many proponents, Theresa May’s government remains committed to reducing migration to the “tens of thousands”. A regional system could see demand vary across the country, and potentially make it more difficult to control overall flows. This immigration model is therefore unlikely to be introduced.
Expand the pre-Brexit non-EEA work permit system to all EEA nationals
Expanding the pre-Brexit visa system for non-EEA workers to all EEA nationals would provide greater control than a points-based or regional system. Applicants would be prioritised according to how well they fulfil set criteria such as income, while creating quotas for each sector, allowing government complete control over immigration types and numbers.
But the pre-Brexit non-EEA system did not offer permits for low-skilled workers (defined as anyone earning less than £35,000), a key component of EU immigration to the UK. For example, eight per cent of the 5.7 million people employed in shops, hotels and restaurants in the UK are EU workers. Given the large sectors of the UK economy that rely on low-skilled workers, a wholesale extension of this model is unlikely.
Expand the current non-EEA work permit system, while keeping more generous options for EEA nationals
The need to maintain a flow of low-skilled workers to the UK means the most likely immigration model is one which provides a more generous system for non-EEA workers, while ensuring Europeans retain some advantages. Until now, the UK immigration system has not provided visa opportunities for low-skilled non-EEA workers, because it assumes this need can be satisfied by UK and European workforces. Partially expanding this to non-EEA workers would placate some liberal Leavers within the Conservative Party, showing government is responding to political as well as economic pressures.
Under a pilot scheme running to 2020 announced this week, low-skilled workers of any nationality will be provided with permits to work for up to six months each year on UK fruit and vegetable farms. This type of scheme allows the government total control over the numbers and skill-sets of immigrants, while mitigating the impact on sectors currently heavily reliant on low-skilled workers.
As it stands, 75 per cent of EU citizens working in the UK would not meet the current visa requirements for non-EEA workers. To ensure some of these citizens can continue to access the UK, some preferential programmes for EU nationals could be created. Past programmes, such as the Seasonal Agricultural Workers Scheme and the Sectors Based Scheme, were limited to Romanian and Bulgarian nationals, but closed at the end of 2013 when those countries gained unrestricted access to the UK labour market. The reintroduction of similar schemes for the whole EU is likely.
The most contentious option, and something Theresa May has ruled out as a policy option through the Brexit White Paper in July, is an agreement with the EU which would keep in place some form of the free movement of people principle. This could be a reformed version of free movement, tempered with increased overall controls for the UK government, while still allowing largely frictionless travel for EU nationals. Though European Council reforms to share the burden of migration more equally across the block, while strengthening the EU’s external borders, may make it harder for the UK to argue for flexibility in its migration system.
While free movement seems like one of the least likely models, the ongoing difficulty of reconciling an open border in Ireland with regulatory divergence for the UK has led to a “backstop” proposal where the UK operates a single market in goods with the EU, but not in services.
To make this a reality, the EU would likely demand some form of free movement of people, given its position on the indivisibility of the ‘four freedoms’ – the free movement of goods, capital, services, and labour.
Unless a solution to the Irish border question is found, the UK could find itself defaulting to the very immigration model the British people voted to leave – with calls of Brexit betrayal no doubt following close behind.
Joseph Jones, Account Manager