Immigration and Scotland Contents

4EU migration and the impact of Brexit

53.There is currently limited information available about the likely structure of the UK’s immigration system after Brexit. The Home Office had originally indicated that it would publish an Immigration White Paper in the autumn of 2017, but this has been delayed and no revised date has been announced. The Home Office has said that this is because it wants to receive the report it has commissioned from the Migration Advisory Committee (MAC) before setting out proposals for the long term.84 The Home Affairs Committee, in its report, “Home Office delivery of Brexit: immigration”, said that it was “extremely regrettable” that the Government’s immigration white paper had been delayed.85

54.At the moment, EEA citizens are able to freely move to Scotland, and the rest of the UK for work, study and leisure. Recognising that ending freedom of movement was a major factor behind the referendum result, the UK Government intends to stop freedom of movement in its current form when it leaves the EU, and to introduce new arrangements for EEA citizens who wish to come to the UK. However, the Government has also been clear that businesses must be able to attract and employ the people they need, and has said that it is open to discussing with the EU how this will be facilitated post-Brexit.

Post-Brexit arrangements for EU citizens currently living in Scotland

55.The Government and the EU have drawn up arrangements to establish the rights after Brexit of EU citizens already living in the UK. The main points of the agreement are:

People who, by 29 March 2019, have been continuously and lawfully living here for 5 years will be able to apply to stay indefinitely by getting ‘settled status’.
People who arrive by 29 March 2019, but won’t have been living here lawfully for 5 years when we leave the EU, will be able to apply for leave to stay in the UK until they have reached the 5-year threshold, at which point they can apply to stay indefinitely by getting ‘settled status’.86

However, we heard from Fife Migrants Forum that EU citizens living in the UK still felt there was uncertainty about their future status and rights. For example, Margarita Permomaite, originally from Lithuania, told us that:

As far as I know, most EU citizens feel unsure of what to do. Friends told me that they don’t feel welcome anymore in Scotland, because they are not sure about their future. They have their jobs here. They have their homes. Many of them have bought a home. Their children go to nurseries, to schools, and they cannot guarantee what is going to happen to them and their children, their families, their lives, to their jobs.87

56.Employers have also called for the Government to make a clearer commitment to EU citizens currently living in the UK. Universities Scotland has called for “urgent confirmation of the right of EU staff and their dependents who are in Scotland before Brexit to live and work in the UK and to access public services”.88 CBI Scotland stated that “it is critical that EU citizens living in the UK are given certainty that their right to continue living and working in the UK will be protected, even in the event of ‘no deal’ on the rest of the withdrawal agreement.”89

57.There were also concerns about the proposed system for registering EU citizens who are already in the UK. The FSB questioned “the feasibility of registering 3 million EU nationals in the stated time space and the impact that this will have on the employers with EU staff”.90 The Committee on Exiting the EU has noted that “There is considerable scepticism that the Government’s online system for Settled Status and temporary status will be operational in time to start processing applications later this year”.91

58.The Immigration Minister told us that safeguarding the rights of EU citizens living in the UK was a priority for the Government, and that the agreement reached between the UK and EU “will provide them with certainty about their rights”.92 She said that the Government had embarked on a digital advertising campaign to inform citizens of their rights, with bespoke digital content people living in Scotland.93 She added that the voluntary scheme which enables eligible EU citizens to apply for their permission to stay would go live in the autumn.94

59.On 21 June the Government announced more detail about how EU migrants would be able to apply for settled status, and the information they would need to provide to support an application. The Government has said that it will be possible to apply online but that assistance would be provided to those who did not have access to computers, or who are unable to use them. It has also said that help with translation will be offered.95

60.We heard from witnesses that uncertainty over the future rights and status of EU citizens was causing difficulties for both employers and employees. We welcome the progress made between the EU and the UK on EU citizens’ rights and emphasise the importance of agreement being secured on this issue in the final deal. We also welcome the assurances given by the Immigration Minister that the Government has now started a comprehensive communications campaign to provide greater clarity to EU citizens throughout the UK. We recommend that the UK Government work with the Scottish Government and all parts of Scottish society to reach all EU citizens currently residing in Scotland, and Scottish businesses employing EU workers to ensure they have all the information they need to successfully apply for settled status.

The future of freedom of movement

61.The UK Government has not yet announced its post-Brexit immigration policy, but it has said that it will end freedom of movement and that it has an overall objective to reduce net migration to “sustainable levels”.96 It is therefore expected that future policy will be more restrictive than at present. The Immigration Minister told us that “The absolute imperative in the Immigration Bill is that it turns off free movement and we have to set that down in primary legislation”.97 She also said that the Government’s future strategy would be based on evidence from the Migration Advisory Committee’s consultation on the role of EEA workers, including its interim report which was published in March, and its final report which is expected in September.98

62.In contrast, the Scottish Government wishes to maintain freedom of movement for EU citizens, or for any new system to be as close as possible to present arrangements. It has stated that future migration is important for filling gaps in key sectors of the Scottish economy and that access to labour from the EU is a fundamental concern for many businesses in Scotland. The Scottish Government also wants any future system to provide a route for migrants to settle permanently in Scotland, and not just grant temporary rights to work.99

63.When asked whether the Government was considering using Tier 3 as a future route for unskilled workers, the Immigration Minister implied that this option had not been ruled out, saying that “what I am very conscious of is that we have five tiers to our immigration system and one of those is currently dormant, but I certainly am not going to sit here and make up policy on the hoof”.100

General principles of a replacement system

64.As part of our investigations, we asked businesses what they want from a new immigration system, and how this should enable them to meet labour demands in Scotland which are currently met by EU nationals under freedom of movement. We summarise the evidence we received below.

Ease of use

65.During the course of this inquiry we have consistently heard about the value of freedom of movement to Scottish businesses. Employers in Scotland have welcomed the access to EEA migrant workers which has come with membership of the EU. The lack of bureaucracy and costs associated with hiring workers from the EEA has meant that even small employers have been able to employ EEA workers. This has been particularly important for Scotland as around 99% of its businesses are SMEs, and the majority of these workers are performing roles for which it would be difficult or impossible for them to secure a Tier 2 visa under the current rules.

66.Witnesses gave a clear message that any replacement system would need to be straightforward to operate and use. David Thompson, Food and Drink Federation Scotland, said that the aim should be for a low cost and low maintenance system.101 Willie Macleod, British Hospitality Association, called for “the most flexible, least bureaucratic, low-cost work permit system there can be”.102 Gareth Williams, Head of Policy, Scottish Council for Development and Industry said that businesses needed to be able to access skills in as frictionless a way as possible.103

67.Witnesses suggested that a points-based system would be too complicated to meet the needs of all employers. The FSB expressed concerns about how small businesses would develop the capabilities to use a points-based system, saying that “significant Government intervention would be required, particularly on the HR side, to enable small businesses to function in that environment”.104 Shirley Rogers, Scottish Care, said that the future process would have to be administratively as easy as possible in order to attract young people who might not necessarily have all of the certification required for a points-based system.105

Skills

68.EU citizens living in Scotland currently work in a wide range of sectors and occupations. Many work in highly skilled roles, for example, witnesses pointed out that skilled roles filled by EU workers are critical for the oil and gas,106 life sciences,107 and higher education sectors.108 However, the evidence we received from employers highlighted a particular concern about how they will recruit workers for roles which have to date been met through freedom of movement and do not meet Tier 2 criteria for skilled workers. In her report on post-Brexit immigration, Professor Boswell explained that:

The majority of EU citizens currently working in the UK are concentrated in relatively low-skilled occupations in sectors such as social care, hospitality and fruit picking. If migration from the EU becomes subject to immigration controls similar to those currently in place for third country nationals, this will create severe shortages, particularly in lower skilled or lower paid jobs in these sectors.109

69.As we saw in Chapter 3 the current visa system largely relies on salary level as a proxy for skill. However, several employers explained that for many roles, whilst they do not meet the Tier 2 criteria for skill level, they nevertheless require particular levels of training, skills and expertise. CBI Scotland explained:

Under the current non-EEA route for skilled migration, the Tier 2 visa route, skilled is defined as holding a degree. Businesses in Scotland and across the UK are clear that this is an overly simplistic and unsatisfactory definition of skilled. Many roles require a large degree of relevant experience or a high level of technical training but would not meet the current definition of skilled. Furthermore, many of the biggest immediate skills pressures, including large goods vehicle drivers and technician roles in manufacturing, would not meet a graduate level skills test.

As well as requiring recognition of both technical skills and graduate skills, this assessment must also take into account experience. Any new migration system must be flexible enough to allow businesses to recruit experienced workers and not restrict the pool to those with formal qualifications only.110

70.Mike Park, Chief Executive Officer, Scottish White Fish Producers Association explained that there was a limited pool of people prepared to take on the tough working conditions of the Scottish fishing industry, and the sector therefore needed to recruit from outside the UK. Although it generally took years to acquire the necessary range of practical and computer navigational skills to operate a fishing vessel, this work did not meet the Tier 2 criteria for skilled work.111 He added that the onshore part of the fishing sector was “70% dependent on an EEA workforce” and already had difficulty filling some roles such as fish filleting. He described existing immigration arrangements as “a bit of a bugger’s muddle”.112 Jonnie Hall, NFUS made similar points about the range of skills required in agricultural work:

We continue to emphasise the point that it is not just about bodies on the ground who are basically there to provide a bit of brawn. To modern-day agriculture and food processing, it is a very technical and very skilled sector indeed. […] Yes, there are different levels of skill need; nevertheless, we always talk about skilled and competent, we never talk about unskilled.113

71.Professor Manning agreed that there was uncertainty about future arrangements for lower skilled workers, who were currently ineligible for Tier 2 visas. He agreed that these jobs required a range of skills, but explained that the current rationale was to define skill level according to the number of years of training which would be required to train up a UK resident to fill a role. Jobs requiring eight or nine years training were more likely to be prioritised for migrant recruitment in the short term, but current policy was that those requiring a few months training might better be met by training up a UK worker.114

Timeliness

72.If the Government wishes to end freedom of movement as soon as the Brexit implementation period comes to an end, it will need to have new immigration arrangements in place by January 2021, which is less than three years away. The Institute for Government has pointed out that once a new system is agreed, the implementation timetable must allow businesses sufficient time to prepare, and that previous major changes for employers have been phased in over a number of years. It has said that exiting the EU does not necessarily mean that the Government has no choice but to change its immigration regime, and recommended that:

In this context, and with a requirement to process EU nationals already resident in the UK, to retain some flexibility to support negotiations and to ensure the UK economy and businesses have access to critical labour, the UK Government should pursue a phased implementation for its future immigration regime.115

Meeting the needs of all sectors

73.Professor Boswell told us that one possible solution being considered by the Government was a sectoral approach, based on identifying particular occupational or sectoral shortages.116 The Institute for Government has said that whilst sectoral visas could support industries dependent on medium- and low-skilled workers from abroad, it would open up the Government to lobbying from industries and would require a centralised system in Whitehall for conducting analysis and planning which would require additional capacity and capability.117 Dr Allan, MSP, Minister for International Development and Europe, Scottish Government, told us that sectoral arrangements would not work for Scotland because so many sectors were affected, arrangements were likely to be complicated and inadequate, and would not solve Scotland’s demographic problems.118 Professor Manning argued that one of the risks of having a sectoral approach was that it could give an artificial advantage to particular sectors, given that workers at lower skilled levels were much more fluid across jobs and sectors.119

74.Post-Brexit immigration policy for EU citizens will have a substantial impact on Scotland’s businesses and public service delivery. A key benefit of the current freedom of movement is the lack of administrative and financial burdens for both employers and employees, which is in marked contrast to the current system for recruiting non-EU workers. The overwhelming message we received from employers was that if freedom of movement ends when the UK leaves the EU, employers will need another route for recruiting workers from outside the UK. Any post-Brexit system for recruiting non-UK workers must be straightforward enough to be used by small businesses. Given businesses’ concerns about the complexity and cost of the current Tier 2 visa system, which we explored in the previous chapter, the existing points based UK immigration system would need substantial reform and simplification if it is to be able to provide a suitable basis for replacing freedom of movement.

75.It is essential that any future immigration system provides businesses with the ability to recruit workers who do not meet the existing Tier 2 skilled worker criteria. We heard from different business sectors about the range of skills, training, qualifications and expertise required in different roles and heard evidence about a number of urgent labour shortages in highly skilled roles in a range of occupations across Scotland, from agriculture and fisheries to the care sector. The Government must ensure that the future immigration system has a more sophisticated way to make judgements on migrant workers skills than the current system which focuses purely on salary level and whether the role requires a degree.

Seasonal agriculture workers scheme

76.The NFUS estimates that there are between 5,000 and 15,000 seasonal workers employed within Scottish agriculture at any one time, but during this inquiry we heard that the sector was already experiencing significant recruitment difficulties, with a declining number of EU nationals wanting to do this work.120 Jonnie Hall, NFUS, told us that he had experience of farmers “who have very, very high-value crops in the field that have simply rotted over the winter because there has not been the labour to pick the vegetables”.121 It is particularly challenging for the agricultural sector to employ domestic labour, which is generally regarded as unattractive.

77.NFUS has called for a new seasonal agricultural workers scheme, covering non-EU as well as EU citizens, to be introduced as a matter of urgency,122 saying that “mechanisms to allow access to workers must be in place soon to ensure workers will be able to come to Scotland in spring 2019, with a trial scheme rolled out from 2018”.123 The Government has previously operated seasonal immigration programmes for those employed in the agriculture and food production industries, but these were closed as it became clear that demand for workers could be met from the EU under freedom of movement.124

78.Professor Manning, Chair of the MAC said that “at the moment, seasonal workers in Scotland but also elsewhere in the UK are a big issue.” He agreed that there were “very real problems” for farmers but said that these existed already, even though freedom of movement was still in operation.125 Michael Gove MP, the Secretary of State for Agriculture Food and Rural Affairs has said the case for a Seasonal Agriculture Workers Scheme after Brexit is “compelling” as he accepted the farming sector will need “access to foreign workers” after Brexit.126 The Immigration Minister said that the Government was “listening to the calls for a seasonal workers scheme very closely”,127 but explained that:

There are a number of concerns. First, I think that it is important that any scheme be very tightly time-limited. I think it is important that we would need to find mechanisms so that people who came here to work in agriculture were restricted to working in agriculture.128

79.There is evidence that access to the UK and EEA labour markets is already insufficient to meet the current demand for seasonal agriculture workers. We recommend that the Government introduce a new Seasonal Agricultural Workers Scheme at the earliest possible date. The UK Government must consult the Scottish agricultural sector on the design of this scheme to ensure that it meets its needs.

84 HC Deb, 5 February 2018, col 1211 [Commons Chamber]

85 Home Affairs Select Committee, Home Office delivery of Brexit: immigration, Third Report of the Session 2017–19, HC 421, para 7

86 UK Government, Status of EU citizens in the UK: what you need to know (accessed 4 July 2018)

87 Q394

88 Universities Scotland, Universities Scotland’s Brexit Priorities, 2017

89 CBI Scotland (IAS0020)

90 Q92

91 Exiting the European Union Committee, The progress of the UK’s negotiations on EU withdrawal: December 2017 to March 2018, Third Report of Session 2017–19, HC884

92 Q620

93 Q643

94 Q644

95 BBC News, Brexit: Three ‘simple’ requirements for EU citizens to stay in UK, 21 June 2017