The limits on non-EU migration consultation 2010

The Changes Envisaged

In contesting this May’s general election the Conservative Party’s election manifesto placed immigration issues centrestage. Now that they are in power the Conservatives are transforming their political rhetoric into policy. The change in policy is being achieved by introducing changes to the terms of existing visa requirements in Tier 1 and Tier 2. The desired result of the change in policy is to reduce net immigration to the UK in order to limit it “to tens of thousands” of people rather than the “hundreds of thousands” of migrants who came to work in the UK during Labour’s 13 year stint (1997-2010) in power. The consultation which consists of a series of questions can be viewed here and will end on 17 September 2010.

The changes which have been envisaged are going to affect Tiers 1 and 2 but will not amend any of the rules relating to the Post Study Work (“PSW”) category within Tier 1. The student category is beyond the scope of the present consultation and a comprehensive consultation in relation to students will be made by the Home Office later in the year. Moreover, within Tier 1 itself the Investor and Entrepreneur categories will remain unaffected by the changes proposed in the present consultation. The reason is that less than one thousand applications under the Investor and Entrepreneur routes are made annually and with the current economic climate the UK requires all the foreign investment which it can attract.

Tier 1

For the moment the government’s focus is to amend the requirements for the Tier 1 (General) visa. However, the total number of Tier 1 (General) applications for the period July 2010 and March 2011 (“the interim period”) are to be capped at 5400 per annum.  The Impact Assessment document suggests that a 5-point increase in the points scoring mechanism in relation to the attributes’ section is likely to be offset by an award of 5-points for age (in the 35-39 age group where no points were available in the past). The government estimates that an increase of 5 points, which will take the total number of points that a Tier 1 (General) migrant must score to qualify for a visa to 100, in this category is likely to reduce the number of applications by 500-100 and not 5000 as was suggested by UKBA research. (A curious contradiction.)

Tier 2

The approach to contain the Tier 2 (General) visa is two-pronged because of the two-sided nature of the application process. On the one hand it is envisaged that there will be a reduction in the number of Certificates of Sponsorship which an organisation can assign and, on the other hand, there are plans to place a limit on the number of individual applications which will be considered in any given year. According to the UKBA’s Impact Assessment document, the proposed changes will decrease Tier 2 (General) applications by 1300 per annum.

Numerically these superficial changes within the tier system are not substantive enough to bring current immigration levels down to the “tens of thousands” levels evidenced in the early 1990s. The UKBA has expressly disclaimed that it is “uncertain to what extent these constraints will bite”. And the word “uncertain” is indeed an apt description of what the future holds.

Most curiously Tier 2 (Intra Company Transfer) visas which account for almost half of all applications under Tier 2 can not be amended to suit the Conservative government’s political agenda because of the UK’s international trade obligations under the World Trade Organisation’s General Agreement on Trade and Services by virtue of which multinational companies may send expert managerial and other staff to work in international locations where company offices are based. The UK is dually bound to honour such commitments under European law and an attempt at limiting the number of skilled migrants under this category will correspond to the UK breaching its international legal obligations.

UKBA Silences

With respect to the alternative to the Resident Labour Market Test (RLMT) which is a prominent feature of the Tier 1 PSW category and an applicant’s ability to convert a PSW visa into a Tier 2 (General) without satisfying the RLMT or being on the Shortage Occupation List when the applicant has been employed by the same UK employer for a minimum period of 6 months, the proposed policy is completely silent. It remains to be seen what the government has in store for the PSW category.

Internationally Inspired

Apparently the idea behind the new approach to UK immigration is inspired by “International Comparators” such as the first come first serve queuing systems deployed in Australia and the US and the “more sophisticated” system of an “Expression of Interest” (“EOI”) pool which is used by New Zealand in approving migrant workers’ applications. Under the EOI pool scheme a migrant may stay in the pool for a period of 6 months following which he or she will be removed from the pool if they fail to apply for their visa when invited to so. It is envisaged that migrants will pay the UKBA a fee for obtaining a permission letter in return for being included in the EOI pool. Removal from the pool would no doubt mandate forfeiture for any fees incurred to be included in the pool.

Will the Eyewash Work?

An inherent problem in adopting such a superficial and cosmetic approach to controlling immigration is that it does nothing to address the more contentious problem of vast immigration from Europe and seeks to limit skilled and highly skilled visas for non-EU nationals who in fact do not even comprise a drop in the ocean when one considers restoring the balance of immigration to an “early 1990s” or a “tens of thousands” level. Even outside of having no significant impact on the numbers of people coming to work in the UK, a policy such as the one suggested is criticised easily on an alternative ground. The logical question which begs itself is whether the UK, a country which, through its colonial history and imperialism, has long relied on foreign talent to work its economy, is rightly advised to place limits on the arrival of the brightest highly skilled and skilled people (forming a “shortage occupation”) from outside the EU to work in the UK in times of economic recession? Logic dictates that is imprudent to limit the entry of bright people who earn money purely on their skill set (and pay UK taxes for the privilege of working here) because such people are likely to invest their savings in the UK’s property and stock markets. The Conservative policy paradigmatically overlooks this fact and, in addition to European migration, is well advised to make a note of it when addressing the immigration agenda in the UK.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Consultation(s), Immigration Law, PBS, Post Study Work, Tier 1, Tier 2, UKBA, UKBA Consultation and tagged , , , , , , . Bookmark the permalink.

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