The Government’s white paper on post-Brexit immigration policy is expected in October. Will the future immigration rules reflect the self-employment and flexible working that are now intrinsic to the UK labour force?

The new immigration framework is unlikely to include sufficient immigration options for self-employed migrants. Self-employment is on the rise in the UK and the Office for National Statistics reports that the increase in self-employment is a structural feature of the nation’s labour market. Contractors offer cost-efficiencies and agility that employers are keen to access.  

The main immigration routes available to self-employed migrants from outside the EEA are narrow and complex. The Tier 1 Entrepreneur route refusal rate for the first quarter of 2018 was 47%. We have welcomed improvements to the rules for another visa allowing self-employment, the Tier 1 Exceptional Talent visa. However, Home Office decision-making and refusal rates still engender an overall customer experience that does little to entice self-employed professionals to the UK.

The Government’s announcement about a start-up visa due to launch in Spring 2019 was promising though it provided few details. It is possible that the new visa will afford self-employed professionals access to the UK labour market. The start-up visa will replace a visa that is currently available to entrepreneurial graduates and does not require investment in the UK. The Home Office only granted 266 Graduate Entrepreneur visas to migrants applying from overseas in the year ending March 2018. The start-up visa route will have to be much broader to help meet the demand for self-employed professionals in the UK labour market.

The lack of settlement opportunities in the UK are also likely to divert talented self-employed professionals elsewhere. The Government has indicated that only ‘temporary mobility’ options will be available to self-employed professionals. The current Graduate Entrepreneur route is consistent in that it does not lead to settlement in the UK. The All Party Parliamentary Group (APPG) on Social Integration argues that the majority of migrants should be afforded settlement opportunities, citing positive impacts on community perceptions of migrants and on integration. Based on the information published by the Home Office so far, it seems unlikely that the Government will accommodate the APPG’s advice or the changing preferences of UK businesses.

The Home Office should also consider the trend in flexible working, including part-time working, remote working and annualised hours, when drafting new immigration rules. Employers have offered flexible working to attract and retain talent for many years. The majority of employees value flexible working.  Younger workers in particular prioritise flexible working opportunities when selecting a workplace, which means that flexible working is likely to increase. Further, flexible working is increasing amongst employees in the highest income brackets is increasing, the category of workers that the UK most wants to attract.

Meanwhile, current immigration rules do not accommodate part-time working, the most common form of flexible working in the UK. Salary thresholds cannot be pro-rated for sponsored skilled migrants working part time. In addition to limiting the UK’s attractiveness as a global mobility destination, disallowing pro-rating of the salary threshold might indirectly discriminate against women, who work part-time more than men do. 

A disconnect exists between the current system for sponsoring skilled workers and the physical realities of the modern workplace.  Remote working conflicts with the Home Office’s requirement that employers report the job location changes of their sponsored skilled workers. Remote workers might not be working from home, but from anywhere with a suitably secure internet connection.  Similarly, communal work spaces conflict with immigration compliance officers’ expectation that employers locate their sponsored skilled workers on demand when they visit a business’s premises.

Annualised hours, another form of flexible working, are also disallowed under the current immigration framework.  For example, many migrant students are authorised to work 20 hours a week during term time, but the Home Office specifies that a week means one period running from Monday to Sunday. Students cannot spread the hours over more than one week, much less a year.

The restrictions stem from a desire by the Home Office to control migrants and their movements and the Home Office is unlikely to shift its objectives sufficiently to accommodate flexible working trends. The Migration Advisory Committee (MAC) is due to advise in September on what the post-Brexit immigration framework should look like and the Government will probably implement the majority of the MAC’s suggestions. Perhaps the MAC’s report will afford the Home Office licence to make the most of a unique opportunity to design immigration policies for the Britons of today and tomorrow.