IMMIGRATION: An Introduction to Scotland

Business Operation/COVID

The defining feature for all firms practising during the COVID-19 pandemic has been the need to adapt their business operations to a largely remote environment. This can involve client consultations, court hearings, legal education or working from home, and has undoubtedly been a significant challenge for firms, especially at the onset of the pandemic. The challenge has been exacerbated because there has not been a marked decline in client numbers. Although client numbers dipped in the early period of the pandemic, they have more than picked up since then, and are running at close to pre-pandemic levels.

The whip of compulsion that the pandemic represented had the effect of accelerating plans for new processes and methods of working: increased reliance on case management systems, electronic filing, flexible working for staff, remote court hearings and remote client meetings to name a few. Most were already in development but left to their normal course might have taken a number of years to come to fruition.

While undoubtedly challenging in the extreme, this has also presented enormous opportunities for firms in terms of reduced costs and significant savings of time. It has provided the opportunity to introduce a more effective and efficient way of working: only attending court in person where necessary as a result of remote and hybrid hearings, meeting clients face to face only when necessary, the more efficient and flexible use of staff, and significant savings in administration.

Whilst it makes sense for practitioners to only attend court when absolutely necessary, this has to be carefully balanced with the interests of justice. In this respect the hearings at the tribunal will continue to primarily be in person, in part because there are routinely witnesses in these cases and many of them are vulnerable. The current message from the administrators of the higher courts in Scotland is that there will be no returning to the way things operated in the past. Current discussions indicate that it is proposed that appeals in the Court of Session and Judicial Review hearings will be heard remotely unless there is a reason for them not to be. In effect the default position will be for remote hearings in these types of cases. There will also be a more efficient approach to working practices and greater flexibility in court administration.

Complexity, Costs and Restriction of Legal Rights

The other constant features of immigration law are its ever increasing complexity and the ever increasing cost of applications. The rules, especially but not exclusively, in the EU appendices are byzantine to say the least. While client numbers are undiminished, these factors put pressure on the bottom line. More time is spent on individual cases due to the complexity of ever changing rules. The costs for the application and for the NHS surcharge are exorbitant, and new clients are forced to shop around and look for bargains. It is no exaggeration to say that family applications can cost well into five figures, especially for settlement applications, and where a priority service is used. A significant portion of practitioners’ time is spent on what one could describe as Humpty Dumpty work – remedying clients’ applications in circumstances where they have attempted, and run into difficulties while making the application themselves.

A recent feature of the legal landscape has been an ever increasing restriction of appeal rights from the Tribunal on to the higher courts. There are Cart and Eba restricted appeal rights on a particular or unique point of law, and it seems that we will be travelling further along the road of restrictions. Current proposals from the government seem to seek to oust the jurisdiction of the higher courts in respect of decisions of the Upper Tribunal, leaving only a fig leaf of potential challenges on grounds of rationality, or lack of it. This is all very much up in the air but would, if enacted, represent one of the most significant changes in the legal landscape for many years. Currently the proposals relate to England and Wales; however, where they go it is difficult to conceive that Scotland will not follow.

Post-Brexit Landscape/Business Immigration and Sponsorship

We are starting to see the impact of the end of free movement in terms of labour shortages in a number of spheres of the economy. This is only the start of this process, and as a result we expect to see an increase in businesses looking for solutions to both labour and skill shortages by seeking to bring increased numbers of staff into the UK.

In August of this year the government issued a policy document ('The UK’s point-based system: sponsorship road map') to deal with some of these issues. The stated aim, amongst other things, is to speed up and simplify the system of sponsoring workers and students to come to work and study in the UK. These proposals hope to build on the changes already made in December 2020, which included the introduction of the Skilled Worker visa.

One feature of the proposed changes will be a new Global Business mobility route for overseas businesses seeking to establish a presence in the UK or to transfer staff here. Key to this will be the new, simplified sponsorship system. This is scheduled to be launched in spring 2022. These proposed changes represent a significant opportunity for firms who provide business immigration advice.