Government’s response to lost PBS review

The government has already started to whip up its rhetoric by talking tough in the face of its defeat in the High Court yesterday. Immigration Minister Damian Green has said that the “judgment will have no impact on the permanent limit on non-European workers the government will introduce next April.” He added:

This ruling is about process, not policy – the policy of having a limit has not been found to be unlawful.

The court’s ruling rests on a technicality. We will set this right in the next few days to ensure we can continue to operate an interim limit.

Despite what he says the fact is that all initial and additional applications for CoS under the new regime for allocation should be granted immediately as the mechanism (“the process”) which delayed the allocation process was unlawful.

The present unlawful regime for CoS allocation which is maintained by the UKBA is further undermined by the fact that within the post 19 July 2010 system only A ranked sponsors can receive a CoS if they can justify it. Previously, under the Labour government things were radically different as an A ranked sponsor could sponsor migrants who were unable to show funds and maintenance whereas a B ranked sponsor could only sponsor migrants who exhibited evidence of funds and maintenance.

After the cap the position has been that both A and B ranked sponsors have their CoS limit set to zero. The difference is that A ranked sponsors are able to apply under the allocation criteria using this form whereas B ranked sponsors cannot (they must pay the UKBA £600 so that the agency can teach them how to raise their rating to an A rated sponsor). But thankfully all this was repudiated yesterday.

It remains to be seen what allowances the UKBA will make for all the post 19 July 2010 CoS assignment applications made by B rated sponsors. It will only be logical if all of these are assigned. Equally, those A rated sponsors who are awaiting the assignment of an initial or additional CoS should also have their applications granted immediately.

By using its unlawful methods the government has caused the UK economy and businesses a great deal of difficulty and financial loss. Surely it would only be just if everyone wronged by the “interim limit” was given a visa immediately. Equally those applicants who no longer want a visa but applied for one and had it refused should have their fees refunded.

My advice to Mr Green would be not to set himself up by suggesting openly that it was the “process” which was unlawful and not the “policy” as it might well be the case that the next judicial review of the cap will be of the “policy” and not the “process”.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Immigration Cap, Immigration Rules, PBS, Tier 1, Tier 2, UKBA, Working and tagged , , , , . Bookmark the permalink.

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