Looking beyond the “Points-Based Immigration System”: A few reflections on the future of immigration under Johnson’s Conservative government

Hidden behind the government's proposed points-based immigration system is an unpublicised avenue for the exploitation of low-skilled workers.

Commentary icon17 Mar 2020|Comment

Manoj Dias-Abey

Lecturer in Law, University of Bristol

Tonia Novitz

Professor of Labour Law, University of Bristol

On 19 February 2020, the Johnson government released the details of the “points-based” immigration system that would operate once the Brexit transitional period comes to an end on 31 December 2020. The policy statement on the points-based system is underpinned by two basic principles. First, going forward, migrants from within the European Economic Area (EEA) would be treated the same as those from other regions. Second, the government would prioritise the entry of “high-skilled” migrants, and even then, only with a job offer in place. It proposes to do this by expanding the existing “Tier-2 visa” route, which currently allows migrants from non-EEA countries to work in the UK.

Rather than representing a sharp break with previous immigration policies and practices, a points-based immigration system represents the culmination of a particular logic that has informed the UK’s approach to migration for several decades now. The language of an “Australian points-based system” first entered the British lexicon after Tony Blair promised it in the 2005 election. Sivamohan Valluvan has argued that a points-based system is a triumph of neoliberalism and nationalism. Migrants will be measured and valued through the economic metaphor of human capital (hopeful entrants have to score 70 points to be allowed into the UK). Further, the State is called upon to play its customary role of controlling and corralling human mobility in the interests of business. The aim here is not to end immigration – a position rarely advocated by any mainstream political party – but to control it in economically beneficial ways, all the while mobilising racial stereotypes to keep it alive as a political issue.

These contending imperatives were fully revealed during the Brexit debate. Migration from the A8 countries under free movement was presented as a problem that could only be solved by taking back control over immigration and introducing a system that could attract the “right kind” of migrants. As a result, from 01 January 2021, there will no longer be free movement or “posted work” from Europe, although European Union (EU) citizens already in the UK will be able to transition to “settled” or “pre-settled” status. Posted work allows service providers (e.g. European employment agencies) to provide workers on temporary service supply contracts. This has alarmed employers, who have asked how certain jobs can be filled in the absence of mobile (often skilled) European labour. The government’s response has been that the vast pools of “economically inactive” people can be trained to fill these labour market shortages. Here, the Conservatives’ nationalist rhetoric about British-jobs-for-British-workers dovetails nicely with their laments about local shirkers and scroungers.

We doubt the adequacy of this narrative because of a factor that the policy statement mentions only once and briefly, namely Mode 4 trade obligations under the General Agreement on Trade in Services (GATS). Characterised as a form of trade in services, and therefore receiving only cursory attention during debates about migration, the World Trade Organisation (WTO) service schedule commitments can enable the temporary movement of workers on more exploitative terms. We suggest that this inconspicuous route might allow the government to placate business demands for workers (particularly low-skilled labour) whilst still upholding the façade of an immigration system that only permits high-skilled immigration.

The current system (operating until 31 December 2020)

The current system, which will operate up until the end of December 2020, has at least three significant facets:

  1. EU free movement, which has enabled any worker from another country in the European Economic Area (EEA) to come to the UK to find work and stay to the extent that they could support themselves by such work. Those EEA workers could not be discriminated against, having the same rights to access to jobs and terms and conditions as EU nationals. The evidence is that these workers did not significantly undercut the terms and conditions of UK workers and made a net contribution to the economy.
  2. EU posted work, which has enabled EU service providers to temporarily “post” workers into the UK for shorter term projects. The legal fiction was that these workers never entered the UK labour market and could be paid, not at the going rate for the job (that is, on non-discriminatory terms), but at the bare minimum and the most basic terms and conditions set out in statute. There were accusations that such posted workers did undercut British workers terms and conditions, including in the notorious East Lindsey Oil Refinery dispute.
  3. The “Tier 2” migration policy for third country nationals (that is, from outside the EEA). Entry under this route has required “sponsorship” from an employer, is subjected to a cap on numbers, and employers must pass a labour market test in order to be able to recruit from overseas. It has been necessary to advertise the vacancy for 28 days to demonstrate there are no suitable local (or EEA) workers, which delays recruitment. Visa holders must also earn above £30,000 per annum. These entrants are allowed to remain in the country for a period of five years, be accompanied by family, and have the right to apply for indefinite leave to remain at the end of their visa. There were approximately 114,000 Tier-2 visas granted in 2019 (including dependants). Another route, the Tier 1 Exceptional Talent visas have been limited to 1,000 persons per year, although it was announced in 2018 that numbers would be doubled.

Immigration in post-Brexit Britain and how we got here

Theresa May’s government commissioned the Migration Advisory Committee (the MAC) to assess the impact of EEA migrants on the economy. After a lengthy period of consultation and deliberation, the MAC concluded that EEA migrants had little impact on the employment levels, wages, and productivity of domestic workers, and further, that they had a negligible impact on public funds and services. Notably, the MAC was primarily looking at the statistically significant impacts of EEA migration on the broader labour market rather than its more localised impact on particular geographical areas or industries. The MAC also ventured to outline its recommendations for a desirable post-Brexit migration system. It proposed the parity of treatment between EEA migrants and non-EEA migrants and argued that the Tier-2 visa system should be expanded, and its rules liberalised. Significantly however, the MAC report suggested retaining the £30,000 salary threshold, although it endorsed that the list of eligible occupations should be expanded, and medium-skilled jobs should be made eligible.

The May government’s response to the report was delayed on several occasions while it was attempting to pass its Brexit programme through Parliament. Finally, in December 2018, the then Home Secretary, Sajid Javid, presented to Parliament the government’s response. Titled “The UK’s Future Skills-Based Immigration System”, the document set out the government’s plans to ensure “migration works in the interests of the United Kingdom”. On the issue of migration for the purposes of work, the government endorsed most of the MAC’s recommendations. It undertook to expand the Tier-2 visa route by uncapping numbers, no longer requiring any form of labour market testing, and allowing workers with intermediate level skills to access the programme. Recognising the adjustment that this would require of UK businesses grown used to EU migration, the government proposed to introduce a “transitional” low-skilled temporary migration programme (in 2017, 503,000 or 21% of EU migrants worked in “low-skilled” jobs).

These proposals were put on hold due to the December 2019 election. The Conservatives went to the election promising an “Australian-style points-based system” to control immigration. Some have argued that the descriptor “Australian” did the work of signalling racial exclusion given how the land down under is constructed in the British imagination. In February 2020, the government revealed the details of the system that would operate at the end of the Brexit transitional period. At the heart of the proposed system was an expansion of the Tier 2-visa route, with some significant variations on the version announced in December 2018. Applicants would need an offer by an approved sponsor, a job at least at the intermediate skill level, and English language skills (the combination of these factors would grant an applicant 50 points). The remaining 20 points could be achieved either by earning a particular salary (0-20 points depending on the salary, the minimum salary level is to be set to £20,039), holding an offer for a job on the occupational shortage list (20 points), or holding a PhD (20 points for PhDs in STEM subjects and 10 points for all other PhDs).

Significantly, there would be no general low-skilled temporary migrant worker programme, although the Seasonal Agricultural Workers programme would continue and be expanded to allow the seasonal migration of up to 10,000 workers. It is worthwhile pointing out that the proposed system bears little resemblance to Australia’s immigration system, which allows entrants with the requisite points to migrate permanently without a job offer.

GATS Mode 4 and temporary movement of natural persons under FTAs provide an avenue for low-skilled migration by stealth

The unspoken potential of GATS Mode 4 and temporary movement of natural persona under FTAs

Although there will be no general, low-skilled guestworker programme, the government has other options to facilitate temporary labour migration. The December 2018 white paper envisaged that the UK would “reserve… its rights to negotiate free trade agreements with other states” and then Home Secretary Sajid Javid observed in his “foreword” to that document that: “The future system will be flexible as we go on to strike future trade deals with the EU and other countries.” There is also a very similar proviso in the 2020 Statement, namely that: “The future system will also deliver on ‘Mode 4’ commitments for temporary service suppliers, in line with existing and future trade agreements.” What does this mean? A footnote elaborates: “Mode 4 refers to commitments that the UK takes in free trade agreements in respect of the temporary entry and stay of business persons. These commitments typically cover business visitors, intra-company transfers and contractual service suppliers, and independent professionals.” The 2020 Statement does not acknowledge that the obligations of the UK are not merely in relation to past and future trade agreements, but under its extant schedule to GATS submitted to the WTO. Under that schedule, the UK has made certain commitments to third country service providers to enable them to provide temporary access (or in other words “post” workers) temporarily to the UK. At pages 15-16, in particular, it is evident that this can enable three-month postings in any 12-month period to aid fulfilment of a service contract relating to a range of potential services, including engineering services, computer and related services, technical testing and analysis, and construction services (the latter having been the focus of the EU’s Posting of Workers Directive as now supplemented). The scope for temporary migration can then be further enhanced by terms of trade agreements (an example being Chapter 10 of the Comprehensive Economic Trade Agreement – known as “CETA” – between Canada and the EU, a model for trade that the Johnson Government has said it wishes to emulate).

GATS Mode 4 temporary migration is more precarious and arguably vulnerable to exploitation than the posting of workers under EU law has been. Under both the Posting of Workers Directive and the GATS Annex on Movement of Natural Persons Supplying Services Under the Agreement, it is understood that the posted worker will not gain access to the labour market of the host State. Article 3(1) of the Posting of Workers Directive has at least offered a model which requires EU States to extend to posted workers basic standards relating to such matters as working time, holidays, a minimum wage, and health and safety. No such protections are required under GATS; presumably, the terms of labour hire are determined by the employer under the laws of the sending State and immigration matters are left to the discretion of the host State. In other words, scope for temporary migrant labour will remain under Brexit and the Johnson government is not prepared to be transparent about what this is likely to entail.

The opaque quality of the Johnson Government’s policy on temporary migration is evident in the Freeports Consultation, also issued in February 2020, subtitled “Boosting Trade, Jobs and Investment Across the UK”. Under these Consultation proposals, up to ten “Freeports” are to be created. These are to be import and export sites (or to use the Government’s words, “sites of innovation”) often involving the combination of component parts of exportable goods, to which different tariff regimes and tax incentives will apply. They may be created at actual “ports”, but also inland at specific designated manufacturing sites. The proposals would seem to entail essentially creating “export processing zones” (that the government lauds as “special economic zones”), which are now notorious worldwide for their “regulatory flexibility” relating to labour standards, especially access to collective bargaining. The government explicitly envisages training and reskilling British workers for whom new jobs will be created, alongside seeming regeneration of their economic opportunities and communities. But this is also about “trade”, and at no point does the Consultation mention the role that third country service providers might play in Freeports or how the workers they send might be treated. It would be helpful to have some firm commitments on this issue before proceeding.

Conclusion

There are two potential ways to read the government’s intentions. The first is that the government, by failing to allow low-skilled immigration, either temporarily or permanently, is intent on promoting the interests of a rentier capitalist class at the expense of productive capital, reflecting an important realignment in the bases of the Conservative party. Another possible reading is that, although the government’s rhetoric seems to suggest that migration will be limited to high-skilled immigration, GATS Mode 4 and temporary movement of natural persons under FTAs provide an avenue for low-skilled migration by stealth. At this stage it is difficult to say which of these readings is correct; it will be important to follow closely developments both in the trade and migration arenas to understand the shape of the system to come.

Manoj Dias-Abey

Manoj Dias-Abey joined the University of Bristol School of Law in 2018. He was previously a Postdoctoral Fellow at the... Read more »

Tonia Novitz

Tonia Novitz is Professor of Labour Law at the University of Bristol. Her research interests focus predominantly on labour law,... Read more »