Employers could be forced to act as ‘immigration police’ under new points-based system, experts warn

As the UK’s post-Brexit visa scheme opens for applications, commentators say businesses are still unaware of new compliance responsibilities

The application system for the UK’s new points-based immigration system opened today, allowing employers planning to hire foreign nationals starting in the new year to begin the visa application process.

The government has said the new system would be “simple, effective and flexible”, but some experts have warned many businesses are still confused by the rules and could be unaware of the additional compliance responsibilities that effectively turn employers into “pseudo immigration officers”.

Under the new system – which comes into force on 1 January 2021 – prospective migrants will have to score a certain number of ‘points’ to be eligible for a skilled work visa. As a minimum, migrants will need a job offer, to be proficient in English and earn at least £25,600 a year, with extra skills or qualifications being worth a set number of points.

While non-EU migrants have been subjected to a similar points-based visa application process for a number of years, for the first time since the 1970s, EU migrants coming to the country from 2021 will also be required to go through the same application process and meet the same criteria, effectively bringing to an end freedom of movement with Europe.

Writing today in The Sun, home secretary Priti Patel (pictured) said the new system would be “simple, effective and flexible”, ensuring employers are able to recruit the skilled workers they need while encouraging training and investment in the UK’s domestic workforce.

“This government promised to end free movement, to take back control of our borders and to introduce a new points-based immigration system,” Patel wrote. “Today, we have delivered on that promise.”

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Alongside the skilled worker visa, a number of other immigration routes have opened today. These include the global talent visa for those who can show they have ‘exceptional talent’ in the fields of science, engineering, humanities, medicine, digital technology or arts and culture; the innovator visa for people seeking to establish a business in the UK; and the intra-company transfer visa for established workers who are being transferred by the business they work for to do a skilled role in the UK.

The UK government said the new immigration rules would ensure that businesses can recruit the “most highly qualified” workers from across the globe and “keep the UK at the frontier of innovation”.

Gerwyn Davies, senior labour market adviser at the CIPD, said demand for visa applications was likely to stay relatively low in the short term as recruitment activity remained weak. But, he said, employers needed to be concerned about the medium-term risks of recruitment difficulties as caused by the “exodus of EU workers since the pandemic”.

“Many employers, especially those in low-skilled sectors, will be forced to make full use of the available domestic workforce and will need to develop tactics to attract more applicants to roles that have historically been filled by EU nationals,” Davies said. These would include increasing skills investment, improving pay and employment conditions and improving job quality and progression routes.

Employers still dependent on migrant labour once the economy starts to recover will need to apply for a sponsor licence and make a plan for resourcing the “ongoing compliance issues” including right-to-work checks that go with being a sponsor, he added.

Chetal Patel, partner in the immigration department at Bates Wells, said only time would tell if the new system was as simple and streamlined as promised. All major regulatory changes required a transition period for businesses to adjust, Patel said, and employers have already been “frantically trying to navigate the new worker guidance”, which she noted was more than 200 pages long and spread over five documents.

“Employers are already asking me: what does the recruitment process need to look at? Can I simply rely on the fact that my friend has the relevant skillset? Do I need to demonstrate that I have tried to recruit locally first?” Patel said, adding that while there was a “sigh of relief” when the government decided to phase out the resident labour market test for incoming migrant workers, there were still “subjective grounds” on which the Home Office could refuse a worker visa application.

“We can expect the Home Office will want to still see evidence of recruitment campaigns being undertaken although the guidance is silent on the mediums of the adverts, contents and duration,” Patel said. 

She also warned that the government may still expect businesses to act as “pseudo immigration offers” when it came to compliance and urged employers to keep their houses in order to avoid unpleasant surprises from the Home Office. This was echoed by Jonathan Beech, managing director of Migrate UK, who said employers may be expected to act as “immigration police” in terms of the compliance aspects of the new immigration system. 

On top of the added costs and confusion brought about by the new scheme – and the pandemic still weighing heavily on businesses – Beech warned there could be a rise in a “black market” of migrant workers, especially where employers worried they could miss out on new talent.

“What you could find is that a lot of Europeans could be coming in the next year and be subjected to immigration control and be entered as visitors,” Beech explained. “But a lot of employers might turn a blind eye to it or knowingly employ them without the necessary permissions because they want to avoid all of the red tape and fees.”

He said this would be a big problem for employers as the sanctions are huge, and he said people can end up being fined or imprisoned for knowingly employing someone illegally.