The UK post-Brexit: learning from the Australian points-based immigration system

Hall & Wilcox’s Head of Migration Kristopher Kunasingam joins forces with Mills & Reeve’s Head of Immigration Alex Russell to explore what the UK Government can learn from Australia when designing its post-Brexit immigration regime.

Why is the UK looking to Australia?

The UK left the EU on 31 January 2020.  The Withdrawal Agreement between the UK and the EU provides for a transition period until 31 December 2020, during which existing EU free move movement rules will remain in force.  There should be no material change to the right of EU nationals to move to live and work in the UK during the transition period.

The Government has confirmed that it is committed to ending freedom of movement from 1 January 2021.  It has indicated that it intends to implement a points-based system with consistent rules for all potential immigrants, regardless of nationality.  In the Queen’s speech on 19 December 2019 the Government announced that it would be bringing forward an Immigration and Social Security Co-ordination (EU Withdrawal) Bill.  Among other things, the Government promised that this would deliver ‘a new Australian-style points-based immigration system’ which would enable it to deliver ‘a single global immigration system based on people’s skills’.

To understand what this commitment is likely to mean in practice, we look first at how the Australian system currently works and then explore the extent to which it is likely to be replicated in the UK, taking account of the recently published report by the UK Migration Advisory Committee (MAC).

The Australian skilled migration programme

Overview

• The Australian independent skilled migration program is built on a points system where applicants are awarded points based on a combination of their age, English language skills, employment experience, education qualifications and partner’s skill. Additional point are awarded to those who have studied in Australia (and even more if it was at a regional institution).
• In addition to the points, the Australian government releases a list of occupations which complement the planning strategy for the country. There are currently 216 occupations which fall under the list and is updated every six months.

Does this apply to all visas?

• The points system only applies to the skilled migration visa program. It does not extend to the work, partner, student, working holiday or family visa programs.

How does it work?

• Would be applicants are expected to achieve a minimum pass score of 65 to submit an ‘Expression of Interest’ (EOI). Submitting an EOI does not equate to a visa application. Instead, the EOI’s are assessed every month and those who score the highest in their occupation are issued an invitation to submit a visa application. They have to submit their application within 60 days of receiving the invitation.
• By doing this, the Australian government controls the intake numbers by limiting the number of invitations it issues. As an example, accountants and engineers are required to score at least a 100 to secure an invitation and this is due to the large number professionals applying under this category.

Why it is advantageous to the Australian government?

• Controlling the EOI invitations allows the Australian government to better manage the population planning numbers. If low, the government can just extend an invitation to those who score lower, but in practice this rarely happens as demand for skilled visas exceed the supply.
• Also, by controlling the invitation numbers, a person does not have an active application which removes the strain on the agency in charge of the process, Department of Home Affairs. Before the system was introduced, a person was able to submit their application as long their occupation was on the skilled list but this strained the system as the government would only grant a certain number of visas each year. Some waited up to eight years for their visas to be processed. Currently, it takes six months and again by limiting the number of applications, the pipeline is well managed.

What are the checks and balances?

• The Australian government tries to be transparent about the process by publishing the pass score for each occupation, the number of people eligible for the visa, invitation numbers each month and visas granted each year.
• However, in practice many have expressed their dissatisfaction with the process as they do not receive an invitation even when they achieve the required pass score. Further, as would be applicants technically do not have an active visa application (the EOI is merely an interest to apply for a visa instead of a visa application), the government is not required to disclose why an invitation was not issued to a particular person. There are also no review rights with the EOI process, as it is not a visa application.
• The only step a person can take is to try and score above what is published for their occupation to increase the likelihood of receiving an invitation.

The UK perspective

Recent developments

The Johnson Government has repeatedly talked about implementing an ‘Australian style points-based system’, without providing details about what this will look like in practice.

The Immigration White Paper, published by the May Government in December 2018, referred to implementing a single immigration system where the skills of a worker – rather than their nationality – would be the deciding factor in granting visas.  The stated aim was to attract talent to the UK, with a focus on skills the country needs and a view to keep net migration at a ‘sustainable’ level.

On 28 January 2020 the Migration Advisory Committee (MAC), which advises the UK Government of immigration matters, published a report considering the benefits of a points based immigration system for the UK and on proposed salary levels for skilled employees.  This report was commissioned by the Johnson Government in order to inform the design of the post-Brexit single immigration system, consistent with its renewed interest in an ‘Australian-style’ points based system.

The MAC’s proposals

The MAC report builds on the content of the White Paper and recommends a skilled worker route with a job offer (ie, sponsored employment of the migrant by a UK based employer) with a salary threshold of £25,600.  This would involve retaining the existing Tier 2 (General) skilled worker visa framework (with some modifications) and fixed eligibility criteria (ie, not introducing a ‘tradeable’ points system).

In addition, the MAC has recommended a skilled worker route without a job offer.  This would incorporate a points based system aspect (ie, tradeable points), taking into account best practice from other countries.  It reviews the immigration systems of a number of other countries, including Australia, as well as aspects of the UK’s current immigration system, and suggests the following:

• There should be an ‘expression of interest’ system in which those who want to come to the UK can register that interest, and a monthly invitation to apply drawn from that pool, which would be subject to a cap
• Applicants would remain in the pool for a certain period to create more stability than, for example. the current monthly allocations system that applies to the Tier 2 (General) category
• The selection could use a tradeable PBS, and the government might want to consider assigning points to characteristics such as: age qualifications; having studied in the UK, and priority area-related skills (for example, STEM and creative skills)
• Language skills should be an essential requirement

Despite representations by the different nations of the UK, including Scotland, in general the MAC has recommended there should be no regional salary variation.  But it has suggested special consideration might be given to Northern Ireland, and there should be a pilot to deal with ‘the particular problems faced by remote areas’.

In addition, the MAC’s view is that the current UK system regarding settlement is too rigid and has reviewed how a ‘tradeable‘ points based system is used for settlement in other countries.  The MAC has recommended a pause to the planned increases in the Tier 2 (General) settlement income threshold, and a review of the requirements for settlement.  It has suggested that the review might recommend more flexible paths to settlement and a role for a points based system in achieving this.

Unanswered questions

The MAC report clearly draws on a number of aspects of the Australian system and provides some clarity on the possible post-Brexit landscape.  However, the UK Government is not required to follow any of the recommendations and a number of questions remain unanswered.

It is not clear whether the Government will implement changes on a transitional basis from 1 January 2021, or adopt a ‘cliff-edge’ approach.  The new Global Talent Visa, creating a new route for researchers to work and live in the UK from 20 February 2020, combined with the practical challenges associated with implementing a new system within a relatively short time period, may indicate that changes will be implemented on a phased basis.

There continues to be a lack of clarity around Iower skilled migrants, who would not be eligible for entry to work under recommendations made to date.  The MAC acknowledges that their exclusion could cause difficulties for some sectors in the UK following the end of EU free movement.  Provision may be made via a temporary worker route (which was proposed in the 2018 Immigration White Paper), or via sector-based schemes (which were mentioned during the election campaign).  But it seems likely that the ability of many employers to rely on unskilled EU labour will draw to an end from 2021.

The May Government indicated its desire to simplify the sponsorship system for employers, including abolishing the resident labour market test and the annual cap.  It is not clear how politically sustainable these proposals will be if the route is to be widened, as suggested.

The MAC report is currently being considered by the Government and a further White Paper is expected in March 2020.