Guest Author Posted by Guest Author on 23rd January, 2019

The Impact of the Immigration White Paper on Universities

Alex Russell, Principal Associate and Head of Immigration at Mills & Reeve LLP, highlights some key aspects of the recent Immigration White Paper.

The long-awaited White Paper on the UK’s future immigration system was published on 19 December 2018, heralding the most significant changes to the UK immigration system for around 40 years. The White Paper will be the subject of consultation throughout 2019.

Assuming the Brexit Withdrawal Agreement is ratified, there will be an implementation period, with freedom of movement ending on 31 December 2020 and new immigration rules expected to come into force on 1 January 2021.

The key recommendation of the White Paper is that the UK immigration system will apply consistent rules to EU and non-EU nationals alike with a focus on skills. This message is, however, somewhat confused by a number of references to exemptions and privileges that will apply to nationals of ‘low risk’ countries.

There is a nebulous overarching policy aim to “reduce annual net migration to sustainable levels”, with uncertainty about whether the Government’s previously stated aim to reduce net immigration to the “tens of thousands” is retained.

Staff issues

The White Paper is something of a mixed bag in relation to the recruitment of workers. Some proposals will be welcomed by universities, with others giving rise to concern.

Potential workers will be required to obtain immigration permission under a revised points-based system, with the key features as follows:

  • The resident labour market test will be scrapped. The 20,700 annual cap on visas for entry clearance applications will also be removed. This is likely to reduce the administrative burden and risks faced by universities and speed-up the process for obtaining work visas.
  • There will be a skilled route, to include workers with intermediate skills levels as well as graduate and post-graduate roles. The minimum salary threshold of £30,000 will be the subject of further consultation and the shortage occupation list (SOL) will be reviewed.
  • Hints at parallel rules from certain low risk countries such as the USA, New Zealand and Canada may make it more straightforward (and/or less costly) for universities to recruit academic and research staff who are nationals of these countries. The Tier 1 (Exceptional) talent category, a potential option when recruiting senior academics, will be retained.
  • Universities that have typically used EU nationals to fill lower skilled and lower paid roles will be concerned about the lack of a route specifically for low skilled workers. Whilst there is provision, as a transitional measure until 2025, to institute a time-limited route for temporary short-term workers for a maximum of 12 months, it seems likely that this will only be open to nationals of specified countries, and will be limited to certain sectors such as construction and social care.
  • Of more significant concern is the apparent aim to adapt the current sponsor licence/points based system to cover EU nationals. Tier 2 would effectively become the main immigration route, which universities would be required to use to recruit EU (as well as non-EU) nationals. It is difficult to see how it will be practicable for universities to administer even a streamlined version of the sponsor based system and manage dynamic compliance obligations without deploying significant additional resources.
  • Whilst some of the current compliance hurdles may be removed, it appears that a financial ‘stick’ may be used to indirectly reduce reliance by employers on workers who require visas. The White Paper refers to the immigration system being self-funding and that increasing the amount of the Immigration Skills Charge may regulate the number of immigration applications.

Student concerns

Proposals in relation to student visa rules and the potential impact on student numbers are, perhaps, less encouraging.

As is the case with workers, the White Paper proposes a single system to cover all international students, whilst obliquely referring to “differentiation” to benefit students from certain countries with a “strong track record of immigration compliance”. In practice, such favoured countries are likely to be those where political and national expediency supports a parallel body of rules.

On a positive note, undergraduates who have studied at institutions with degree-awarding powers and full-time postgraduates will be offered six months’ post-study leave, providing additional time to find permanent skilled work in the UK. This period will be extended to 12 months for students who have completed a PhD (replacing the current Doctoral Extension Scheme). The switching rules will also be tweaked, enabling students to switch into the skilled workers’ category up to three months before the end of their course, and from outside of the UK for two years after graduation. The latter proposal, in particular, may be an attractive feature for international students when assessing the country where they wish to study.

Of concern to the higher education sector will be what the White Paper acknowledges as “additional processes, requirements and costs that could deter some applications” from EU students, notwithstanding that the Government intends to work with the sector to develop “a new digital system”. Institutions will be faced with having to sponsor EU as well as non-EU students. Given non-UK EU students studying in the UK currently number around 135,000, there will be concerns about the administrative burden and potential implications of compliance failures associated with this, particularly as the White Paper makes clear that the Home Office will continue to take robust action where failures are identified.

Furthermore, although a matter for Parliament and devolved administrations to determine, there is a significant risk that EU students not covered by the Withdrawal Agreement may face increased tuition fees and reduced entitlement to student finance. One assessment conducted in January 2017 estimated that the impact of harmonising the rules for EU and non-EU students could result in a 57% reduction in enrolments from EU students.

A revised White Paper?

It seems likely that a revised White Paper will be issued at some point in late 2019 or early 2020, taking into account the terms of any ratified withdrawal agreement with the EU and the views expressed by employers, sector bodies and others. Historically, the higher education sector has been very effective at participating in consultation exercises on future changes to the immigration rules. Engaging in the coming months with the proposals set out in the White Paper and providing evidence-based representations may prove to be of great importance in preserving higher education as one of the UK’s most significant national assets.

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