UK Immigration Focus 2022

Date: 15 Mar 2022

Silvia Ricciardi

Citywealth interviewed some of the Leaders List’s immigration law experts to better understand the present situation and what to expect from the future of the UK immigration regime.

The current UK immigration regime has to deal with numerous difficulties encountered after Brexit. Going through the different visa types existing (and not existing anymore) in the UK, our Leaders List’s experts working for Payne Hicks Beach, Fladgate LLP, Laura Devine Immigration and Philip Jones Legal give precious advice to individuals and businesses who want to make the UK their home to better understand the present situation and what to expect from the future of the UK immigration regime.

UK Immigration Regime: PBS and other routes

“Having worked in immigration for over 20 years it seems to be an area that no government has quite got right,” comments Kathryn Bradbury, Partner and Head of Immigration at Payne Hicks Beach. “There has been a systematic reduction in immigration routes to the UK with the express intention of reducing the numbers of migrants. High-value categories have been narrowed to innovative businesses only since the removal of the Investor category.”

Kelly Whiter, Partner at Fladgate LLP, gives details about the current immigration regime. “The UK operates under a points-based immigration system (PBS) for the most part, although there are several routes that are not points-based. Aside from Irish citizens, anyone who is coming to the UK for work needs to meet certain criteria which they will score points against. Provided they score sufficient points, a visa will be issued to them.”

Laura Devine, Managing Partner at Laura Devine Immigration, reflects on the points-based system, launched by the UK’s Home Office on 1 December 2020, adding that “the new PBS largely reflects the previous system, with some additional routes and amendments to existing routes. As the name suggests, it requires individuals to score a requisite number of points for a given immigration route. For example, individuals under the Skilled Worker route must score a total of 70 points, which are earned through a combination of sponsorship, skill, salary, and English language requirements.” Sponsorship is key for specific routes, as outlined by Kelly. “Some routes require sponsorship, this is the case of Skilled Worker, Intra-Company Transfer and Temporary Workers, whereas others do not require sponsorship but still allow the individual to work in the UK, as it happens for UK Ancestry, Graduates, Youth Mobility Scheme, Investors.”

There are also other ways to be welcomed in the UK. Kelly mentions that “the other main way for people to enter the UK is via study, business or family routes.” Laura adds that “outside the PBS, there are other routes available to individuals and their family members, from Visitor and UK Ancestry visas, through to asylum and the European Union Settlement Scheme (‘EUSS’). The most popular routes (by number of entry clearance applications in Q4 2021) are Visitor (302,118), Student (96,953) and Skilled Worker/Intra-Company Transfer (49,632).”

“The UK Immigration regime is in constant flux,” states Shekhar Bharania, Senior Partner at Philip Jones Legal. “The Secretary of State for the Home Department has the power to change the Immigration Rules. This creates a dynamic area of law. Immigration practitioners must navigate the ever-changing corpus of immigration law. The Judiciary plays a key role in balancing the need for UK immigration control with the human rights of the individual.”

But the future may hold new developments, as highlighted by Laura. “The Home Office’s New Plan for Immigration sets out its ambitions for the future of the UK’s immigration system. The objective is to attract highly skilled individuals on the one hand and cut on illegal immigration on the other. To this end, the Home Office has announced some upcoming routes for highly skilled and educated individuals (including the High Potential and Scale-Up routes) as well as the divisive Nationality and Borders Bill, which seeks to radically reform the UK’s asylum system.”

Before and after Brexit

Looking at the UK Immigration regime before and after Brexit, Kathryn is firm in saying that “the scheme to grant residence to those EU nationals resident pre-Brexit is not fit for purpose. Serious delays are encountered and erroneous refusals made which has meant applicants have had a greater need for legal advice. The immigration rules are the most complex piece of immigration drafting I have ever seen. This is totally unnecessary.”

“From a UK immigration perspective, EU and non-EU nationals are now treated similarly,” outlines Kelly, who points at the negative aspects of the UK sponsorship system. “There are still concerns around skills shortages in the UK created by Brexit and the loss of free movement. Additionally, the UK sponsorship system, by which employers can recruit migrant workers to work for them in the UK, is burdensome and expensive, which substantively increases not only costs for employers, but also delays while individuals apply for visas.”

The pre-Brexit structure offered the UK numerous advantages, as mentioned by Shekhar. “Pre-Brexit, EU citizens could enter and remain in the UK by way of exercising their Treaty rights, for example, as workers or individuals looking for work. This surplus of EU workers also benefited UK companies. It gave UK companies access to a market of skilled workers on their doorstep. Right now, UK companies that desire to recruit overseas workers from the EU must obtain a Sponsor Licence from the Home Office, which is a relatively quick process with priority service fast-track options.”

But the UK had to come to terms with not only Brexit, but also COVID-19, as specified by Laura. “The end of free movement on 31 December 2020 was followed by the onset of COVID-19. The co-existence of these two phenomena have made it difficult to isolate and assess with accuracy the impact of either one of them on EU migration. Some analysts, for example, suggest that EU employment fell in the region of 300,000 to 500,000 by the end of 2020; however, this figure is contested and the Migration Advisory Committee (MAC) has said it is not possible to accurately measure the decline in EU employment following the end of free movement (and the onset of COVID-19).”

Since 31 December 2020 the demand for work visas requested by EU citizens has been low, but Laura thinks that one possible explanation could be attributed to the European Union Settlement Scheme (‘EUSS’). “In the first six months of 2021, EU citizens accounted for just 14% of work visa applicants (including dependents). These figures are particularly significant when contrasted with those in 2019, when EU migrants represented 45% of migrants coming to the UK to work for at least one year. One potential explanation (apart from the impact of COVID-19 on international travel) is the European Union Settlement Scheme (‘EUSS’). The EUSS allowed EEA and Swiss nationals (and their family members) who were living in the UK before 31 December 2020 to continue to reside in the UK. As of 31 January 2022, 6.4 million applications had been made to the EUSS. The deadline for the scheme was 30 June 2021, so it is possible that many EEA and Swiss nationals chose to apply under the EUSS ahead of the deadline, instead of applying for work visas.”

Another crucial consequence of Brexit (and COVID-19) has been labour shortages in the UK. Laura states that “a record 1.2 million of job vacancies was registered in the three months to November 2021 and more than a third of businesses with 10 or more employees reported labour shortages in late November 2021. Sectors such as haulage, retail, drink and food manufacturing have been hit particularly hard.” And what did the Government do about it? “The government introduced a number of temporary visas for the likes of HGV drivers and pork butchers in response to mounting pressure from industry bodies to grant temporary visas to EU workers. However, – continues Laura – the government insists that such measures are fugacious and that its strategy is to encourage employers to make long-term investments in the UK domestic workforce instead of relying on external labour.”

Visa types and the Tier 1 Investor route (or ‘golden visa’)

“There are different visa options available for those relocating to the UK. Generally speaking, UK visa types can be categorised into work (both sponsored and non-sponsored), study, family and visit visas,” mentions Kelly, who dwells upon the Tier 1 Investor route and the consequences of its loss. “The sudden closure of the Tier 1 Investor route to new applicants, with immediate effect, on 17 February 2022 came as a shock to many, particularly as there were individuals who were about to submit their applications but then couldn’t do it.”

Laura talks about the concerns which brought the closure of the Tier 1 Investor route, but she also stresses the lack of an adequate notice period. “The Tier 1 Investor visa, colloquially referred to as the ‘golden visa’ in the media, is an unsponsored immigration route available for individuals who make a £2 million investment in the UK. On 17 February 2022, the Home Office made the unprecedented decision to close the Tier 1 Investor route with immediate effect, citing ‘security concerns, including people acquiring their wealth illegitimately and being associated with wider corruption’ as the impetus for the abrupt closure. The decision was met by criticism from legal professionals, not least because they were given no prior notice and the guidance on the closure was published after the decision was announced. The route was under review at the time of the decision and a long-awaited report on the findings by the Home Office is still to be published. Some practitioners see the move as politically motivated and believe the Home Office should have considered introducing reforms to the route, as opposed to an abrupt closure without giving individuals the customary 21 days’ notice period before changes take effect.”

To this regard, Kelly confirms that reforming rather than closing the Tier 1 Investor visa would have been enough. “There were some issues with the Tier 1 Investor route, but reform rather than closure would have been sufficient. The mechanism to weed out rogue applicants was already in place via the Immigration Rules and General Grounds for Refusal and just needed strict enforcement, which would have been a far better option. The impact of the loss of this route cannot be underestimated. If the UK wants to continue attracting top-tier talent and investment, especially as the UK begins its post-COVID recovery, it requires an inward investment that the users of this route bring. The applicants under this route are typically individuals with diverse international business interests who require the flexibility that the route provided. There is currently a lack of suitable alternatives providing the same level of flexibility for these individuals.”

And the consequences for entrepreneurs seem not so encouraging, as added by Kelly. “As advisers, we are now spending a lot of time with clients considering their options and the alternative routes by which they could still achieve their goal of relocation to the UK, although none currently are able to offer the same level of flexibility that the Tier 1 Investor programme did.”

“Its abolition could cause economic shock,” outlines Shekhar, who mentions that “a visa category that is a hybrid between the old Tier 1 Investor and the current Innovator Visa could be introduced. If it is adopted, it should enable the UK to attract valuable entrepreneurs and investment. It is important for our country to attract such talent and investment post-Covid to boost the economy.”

The negative impact of the closure of the Tier 1 Investor visa is confirmed also by Laura, who says that “Its closure creates a void for high-net-worth individuals wishing to make an investment in the UK with a view to staying (and potentially settling) in the UK. The Home Office has said that it is reforming the Innovator route, which is currently available to experienced entrepreneurs who invest £50,000 in setting up a new business in the UK. However, any changes to the route are not due to come into effect until autumn 2022.”

General advice to individuals and businesses who want to make the UK their home? Our experts recommend to…

… take into consideration all the key factors. There is a lot to consider, above and beyond immigration, and tax advice is often the driver of the choice on what immigration route to pursue. – Kathryn Bradbury

… seek advice early and come at it with an open mind. I believe the UK is still open for business and it is possible for individuals to relocate themselves and their businesses to the UK. Changes to the Immigration Rules are not unusual, although some are bigger changes than others. Routes can be reformed, some can be closed while new routes can be introduced. As advisors, we can assist clients to navigate the complex and ever-changing Immigration Rules and find workable solutions for them. – Kelly Whiter

… consider the Sole Representative of an Overseas Business Visa if you own a company and wish to open a subsidiary in the UK. The Sole Representative of an Overseas Business Visa does not have a minimum investment requirement. – Shekhar Bharania

… speak to an immigration law expert. There is a wide range of routes available, and the eligibility requirements and conditions and periods of leave for each route vary. Not all routes lead to settlement, therefore a person who comes to the UK in the hope of one day settling in the UK needs to think carefully about which route they choose. In addition, immigration law is one of the fastest moving areas of law, with new rules and concessions coming into effect on a near-weekly basis. Navigating this complex, fast-paced system can be challenging, even for immigration lawyers. That is why it is important to get expert advice. – Laura Devine