Home secretary signals end of settlement for skilled workers and students

Speaking on future action in relation to immigration policies while addressing the Conservative party conference the home secretary, Theresa May, intimated the government’s intentions to stop the right to permanent settlement for more than 100,000 skilled workers and 320,000 overseas students who enter the United Kingdom annually.

From the outset it must be stated that the right to permanent settlement in the UK under the immigration rules is a very difficult thing to establish in any category. In the categories which exist under the rules students are the group most penalised by Mrs May’s remarks. It is also envisaged by Mrs May that in future skilled workers will also be excluded from the right to settle in the UK.

Presently, in order to apply for settlement as a student an applicant must exhibit that they have been present and settled in the UK for a period of 10 years continuously. Settlement is only possible under the route if there have been no lapses in an applicant’s leave for more than 10 days in the ten continuous years. However, case workers are encouraged to grant ILR even if a second gap of ten days exists in any given case. Any deviations from this norm are not tolerated but in practice ILR has been granted even in caes where gaps of over a year are present in an application.

In a nutshell these tight conditions are additionally supplemented by the requirement that the applicant must not have spent more that 18 months outside of the UK in the ten years and further than any exit from the UK must also not exceed six months on any one occasion. Presently the long residence rules are such that within the 10 years’ category one can have a combination of leave as a student or, for instance, as as a worker. With respect to settlement time thresholds are very high and to settle in the student or worker categories (10 and 5 years respectively if applied for exclusively in either category) potential applicants have their work cut out for them in order to satisfy the UKBA. In any event, most students would generally not stay in the UK that long because it is very expensive and impractical to remain in the UK after graduation as it is virtually impossible to find employment even if one has qualified from prestigious universities. In comparison jobs for UK graduates are more abundant in students’ home countries and life is much easier there as well. Whether the new envisaged policies will keep the best and the brightest in the UK is something which remains to be objectively ascertained through robust testing and independent vetting rather than just governmental rhetoric and proclamation.

The home secretary stated that the government will reduce the numbers of students who presently arrive in the UK to study below degree level. According to her half the students who come to study in the UK annually – 160,000 out of 320,000  – do so attending below degree courses.

The other target which will comprise the cull in settlement applications will come from the 100,000 skilled workers who enter the UK to work. Under this category it takes 5 years continuous residence to qualify for settlement. Workers pay taxes during this time and therefore their contribution to the economy is massive and it has been reported to be £17 billion annually. In contrast to the 300 million EU citizens who can come to work here (non EU family members included) in any job that a British worker can do, a potential denial of rights under immigration law to the non EU 100,000 skilled workers who wish to settle in the UK is bereft of all probity in policy making.

It seems that the government wishes to introduce immigration policies which discriminate against people who are willing to contribute to this country’s future.

However, this is not the first time that this has happened. The images of East African Asians fleeing African despotism are not so easily forgotten and neither is this grotesque legislation – The Commonwealth Immigrants Act 1968 – which is now an acknowledged historic wrong and which was only recently righted by amendments made to the British Nationality Act 1981 by the Nationality Immigration and Asylum Act 2002 . If the government wishes to repeat discrimination such as this great injustice, then people will stop coming to the UK and this is no doubt what the government is seeking.

From the student side of things one “good” but unreasonable solution open to the government is to restrict the number of years someone can study in the UK but this could potentially conflict with the ECHR. It will no doubt take a Sedly LJ decision to clarify appellants’ rights and hopefully the home secretary will not want to test the limits of her authority with him yet again.

Through the home secretary’s speech we have finally come to know of what will become of the Post Study Work route which we wanted so much to know about since the UKBA was silent on its future. It seems that this visa will be axed if the government has its way. If the Liberal Democrats go along with all this then what a change all this is from their election manifesto “immigration amnesty”.

It was said by Mrs May that “between 1997 and 2009, net migration to Britain totalled more than 2.2 million people. That is more than twice the population of Birmingham.”

What is striking is that the government fails to recognise that most of this wave of migration arrived into the UK from EU countries and not as students, workers, or asylum seekers from countries whose nationals are subject to immigration control and therefore require visas.

The following formed the crux of the home secretary’s immigration control mechanism:

· Transitional controls for new EU member states.
· A fairer and more efficient asylum system.
· Action on student visas.
· Action on family visas.
· Action on the right to settle in the UK.

In more ways than one the speech which can be viewed in its entirety here was a condemnation of everything or anything that the Labour Party did regardless of whether it was right or wrong. The home secretary also chided the Points Based System (PBS) for being inefficient and Labour’s fault. However, it must be noted for the record that prior to the PBS the revenues collected by the then Immigration and Nationality Directorate (IND) were non existent and the Tory party’s immigration record prior to 1997 matched if not exceeded Labour’s appalling immigration policies thereafter.

Mrs May said that hate preachers would no longer be welcome in the UK which is a really odd claim to make given that Abu Hamza has won his appeal to keep his British passport. The Special Immigration Appeals Tribunal has allowed him to keep his British citizenship because he has already lost his original Egyptian nationality.

The home secretary said that more entrepreneur and investor visas were the order of the day for the UK economic recovery but the extremely high investment thresholds in these categories and the even more onerous requirements in relation to extensions have meant that these visa routes remain mostly unused by applicants. Fewer than 5000 investor visas have been issued in the past year.

From Mrs May’s speech it remains unclear whether settlement applications, which can be made after 5 years, will remain open to the Tier 1 (Entrepreneur) and Tier 1 (Investor) applicants after the envisaged changes are introduced.

If settlement remains open to Tier 1 (Entrepreneur) and Tier 1 (Investor) applicants and is closed to Tier 1 (General), Tier 2 (General) and Tier 4 applicants then this surely constitutes a breach of articles 8 (private and family life) and 14 (discrimination) of the ECHR.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in AP (Russia), Article 14, Article 8, Asylum, Citizenship and Nationality, Constitution, Court of Appeal, Dependants, Economy, Education, Employment, Entrepreneurs, Fees, Immigration Law, Immigration Rules, PBS, Post Study Work, Settlement, Tier 1, Tier 2, UKBA, Working and tagged , , , , , , , , , , . Bookmark the permalink.

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