The UK's deeply flawed immigration system urgently needs an overhaul before Brexit or businesses will suffer

After much pressure, the government finally intervened in the Windrush scandal with fast-track British citizenship for the victims but calls are now being made for an urgent review of wider immigration rules which risk damaging successful UK firms.

Almost half of immigration decisions that go to appeal in England and Wales are overturned, leading to concerns that the system is deeply flawed.

Court of Appeal Judge Sir Stephen Irwin said in a recent speech that the UK’s immigration rules are, “in truth, something of a disgrace”.

If judges struggle to decipher these perplexing rules, how can the general public be expected to?

Overworked and under-resourced, the Home Office is feeling the full force of pressures to ‘fix’ the system before Brexit kicks in to avoid some tough questions: how will it cope with an influx of EU visa applications? Are we driving our talent over a cliff?, and, where is the safety net?

Brexit risks creating a perfect storm for migrant workers in the UK just as competition increases from countries like Canada and Australia, whose respective governments positively encourage skilled people to move over. In contrast, the UK causes them a lot of anxiety.

The Home Office’s skilled worker cap on the number of people who can be sponsored for visas by their employer - known as Tier 2 - has been hit for the fifth month in a row. This means UK companies are being often denied access to skilled non-EU staff unless they pay salaries of over £55,000 per year.

The draft EU withdrawal Bill provides some comfort to EU nationals who have resided in the UK lawfully for five years before 31 December 2020, known as the “residency requirement”. They will be entitled to “settled status”, meaning they can continue to live and work in the UK after this date.

But this status isn’t automatically granted; individuals will have to apply, and they can’t have left the UK for a continuous period of more than six months during these five years. EU nationals who arrive before this date, but who haven’t lived here for five years, will be able to apply for what is known as “pre-settled” status and can live and work here until their five years is up, and can then apply to settle.

Despite this, there are serious deterrents in applying for a visa: the government increased application fees by 4 per cent this month, and this is in addition to the immigration skills surcharge. Add to this a proposal to double the immigration health surcharge from £200 per year to £400, and the process becomes very expensive.

Navigating the complex law on immigration visas is just as off-putting. Immigration law is supposed to be accessible, yet I have heard Lord Justice Jackson say that the points-based system has achieved a degree of complexity that even Byzantine emperors would have admired.

The points-based system has five tiers, working down from “high-value migrants” such as entrepreneurs and investors at the top to temporary workers at the bottom.

The UK is still a hotbed for continental European firms, but if the government wants to continue to live up to its mantra of being “open for business”, then it needs to make changes.

Being too obsessed with attracting exceptional talent to the UK has meant that there is a real issue for low-skilled workers. While for highly skilled workers, not much will likely change, can the Home Office not consider opening up Tier 3 to help deal with any future shortfall of low-skilled workers?

Any reform will take a long time to resolve as the rules are complex, and there is a real concern that the UK will not achieve this in time. While the general public’s feeling is one of “too little, too late”, there is always a way. Deregulation is needed to make the process a lot more straight forward, but there just isn’t an appetite for the government to do this.

The fixation remains on keeping net migration figures down, rather than putting policies in place to achieve a favourable outcome for all, but hopefully the tide will turn in light of Windrush.

Ross is Head of Employment and a Partner in the Immigration team at Oury Clark.