One would have to be quite stubborn and ill advised not to take gravely seriously the opinion of the Law Society of England and Wales (the society) in a legal matter. Yet the government seems determined to do just that.
The society’s views about the immigration cap are diametrically opposed to those espoused by the government. In the executive summary of its August 2010 memorandum submitted to the Home Affairs Committee (HAC) the society highlighted its concerns in relation to how the UK’s legal services market would be affected by a reduction in visas for highly qualified foreigners who worked in City firms.
The society took the view that a reduction in visas would deprive the UK of the best legal talent available internationally and that a reduction in mobility for international lawyers working in the UK “will result in the movement of the centre for legal work to a jurisdiction that will allow mobility”.
Equally, the society made the point that post recession recovery of business should not be prejudiced by stricter immigration rules. The society further explained that apart from paying very high taxes in the UK, migrant foreign lawyers not only possess excellence their high qualifications and achievements also compliment the dynamic nature of the legal services in the home market.
Apart from saying that the £4 billion per annum legal market in the UK would suffer, the society also said that a closure of the UK legal services market would be matched by equivalent restrictions on UK lawyers doing business abroad. The society described closing the UK legal market to migrants as disturbing a “delicately balanced” market which currently exists in the international legal services sector.
Apart from the broader implications of introducing protectionism in the legal services market at the cost of excluding migrants the society emphasised that:
“20. Given the differences in size and international structure of each of the firms it is difficult to meaningfully compare the number of migrant lawyers brought into the UK by each organisation. The proportion of the migrant workforce at contributing firms ranges from approximately 7% to 12%. In one firm, approximately 40% of qualified lawyers and 10% of trainees recruited in the last three years were migrants. Another firm equated the employment of four work permit holders to a contribution of over £1 million in billings in the previous financial year.
21. Law firms have provided the Law Society with case study examples profiling the type of migrants typically recruited in the UK legal sector (including details of age, qualifications, experience and earnings) which are available to the Committee on request.”
The society took the view that a “pool system” such as the one in New Zealand would be too bureaucratic and inefficient to run and it noted that “the New Zealand system applies to permanent migration, not time-limited working visas”. Therefore, the society said that the “time, expense, inconvenience and uncertainty associated with such a system would be disproportionate for migrants seeking to enter the UK for a fixed period.”
The society urged the UKBA to keep the system simple for the purposes of the Tier 2 (General) application which was the natural route for a trainee with a Tier 1 (Post Study Work) visa to take. The society’s position on Tier 2 (General) was that:
“29. In developing this policy, UKBA must be mindful of the need for flexibility in business recruitment requirements across the year. Applications that are unsuccessful in one quota period should be rolled over to the next. However, an allocation of certificates of sponsorship should be kept separate in each period to deal with exceptional circumstance applications. Sponsors should be required to demonstrate a clear business case for an exception to the quota in each instance. Clear, transparent criteria detailing how such applications will be assessed should be published by UKBA.”
In relation to the Tier 2 (Intra Company Transfer) category the society stated that since this category did not lead to settlement it ought to be excluded from the cap altogether. Moreover, it was further said about the Tier 2 (ICT) that:
“32. Firms use ICT to bring in staff from overseas offices for training purposes, and to staff specific deals. Relocating staff for short periods is not ideal for businesses, and individuals are less willing to relocate for short periods. A two-year limit would therefore be better for ICT. Further, if a migrant is in the UK for less than a year they are not considered “resident” for taxation purposes, which mean the UK will miss out on the tax revenue that would otherwise be contributed by these highly-paid individuals.”
The society advised the UKBA not to merge the Resident Labour Market Test (RLMT) and the Shortage Occupation List (SOL) as “the RLMT caters for acute labour shortages” whereas the SOL “generally includes lower paid skilled occupations on a sectoral basis”.
It was also submitted by the society that an attempt to exclude migrants’ dependants would give rise to breaches of their family life under article 8 of the ECHR.
Furthermore, the society also foresaw potential discrimination litigation because “if visa extension applications are to be included in the limit then employers will face difficult decisions in terms of choosing which of their migrant employees to retain and which to terminate. This may give rise to significant litigation risk for employers.”
The general concern raised by the society remained that given the very high level of study and vocational training involved in become a lawyer in England, it was imprudent and counterproductive economic decision making to reduce immigration without due process and consultation because this would have adverse consequences for the colossal amount of multidimensional and multi-jurisdictional legal work undertaken by English law firms.
The society’s memorandum can be viewed here.