Immigration limit and consultation: Our comment

The new coalition Government has recently announced its intention to introduce a limit on skilled migration and is currently carrying out a consultation on the issue. Before the official limit comes into effect in April 2011, the Government has announced a temporary limit, which will take effect from mid July.

We believe that this development will represent the most significant obstacle in the last decade and more to the ability of UK employers to recruit skilled migrant labour. The impact will vastly exceed that of the introduction of the Points Based System in 2008.

The full consultation document (less than 10 pages of main text) can be found here along with methods to respond, either online, or by completing the following template:

We will share the content of our response to the consultation, so that anyone who shares our views can quickly and easily forward a fitting response to the UKBA/British Government.

UK Work Permits Ltd is opposed to the limit. We believe that this announcement is more of an effort to be seen to be doing something radical, than a truly workable idea to sensibly control immigration.

A simple headline including “immigration limit” may appear to many members of the public to indicate a real effort to control immigration and therefore reduce any negative consequences of uncontrolled immigration. However, we believe this initiative will do virtually nothing to reduce overall numbers, and it won’t touch on any of the real causes of concern among the British public.

Rather than controlling the categories of immigration that actually cause a strain on public resources, this move seems aimed at grabbing headlines and gaining favour with less informed members of the public.  The proposals do not address the issues of EU immigration (which the Government can do little to change, short of pulling out of the EU), the student visa path (as an apparently lower priority, this subject is due to be visited later in the year), or the controversial issue of uncontrolled “chain migration”.

Instead, these changes (the first of supposedly many) specifically target those people most likely to contribute to British society, and those least likely to be a drain on public resources. Perhaps more importantly, these changes will inevitably stifle the ability of employers in the UK to bring in much needed skills and expertise.

Non-EU nationals entering the UK for over 1 year for the purposes of work amounted to only 17% of non-British inflows in 2008 (this number is sure to have declined significantly already). “Study” amounted to nearly 28%. EU inflows accounted for 39% according to the International Passenger Survey. For tiers 1 and 2 to be at the top of the Government’s “hit list” makes no sense at all. They appear intent on “using a sledgehammer to crack a nut” that doesn’t even exist, while ignoring areas far more obviously deserving of attention.

The idea of a “first come, first served” system for Tier 2 of the Points Based System, inevitably means that in many cases, the timing of an application will influence the immediate ability of UK employers to address their human resource requirements, as much, or more than any objective eligibility criteria.

The Government, with the Migration Advisory Committee, has agreed and declared that they will adhere to the principles of

  • Fairness
  • Predictability
  • Selectivity
  • Operability

However, many of the suggestions made in the consultation document appear to be totally at odds with those principals.

For those without the time to read the consultation document, we have listed some of the main ideas raised below, along with our comments where relevant. We will be responding to the consultation document imminently (and we will share or publish our response), and we advise all of our clients to also make their views known. With regards to all of our licensed sponsor clients, we also would recommend that you contact your Consultant in the very near future, to make any request with regards to CoS quotas, as soon as possible.

A list of some of the ideas raised in the consultation document, and our comments, follow below.

Main Limit Mechanism

Tier 2 Limit Mechanism

Consultation content includes the following:

  • Main choice is presented between the “first come first served” option or the “pool” system.
  • In this case, the UKBA favours the “first come first served” option.
  • The system suggested is one where a quota would be released / confirmed on a quarterly basis, which will supposedly provide businesses with “the greatest certainty”.
  • Another option being touted (previously floated a few years ago under the Labour Government) is the idea of using “auctions”. Under this system, licensed sponsor’s would “bid” for a quota of Certificates of Sponsorship. Under this system, literally the Government would be selling the right to bring in migrant labour “to the highest bidder”.

UKWP Comment

We agree that from the two main options presented, the “first come first served” option seems the fairest: it will still allow for decisions to be made according to consistent and predictable qualifying criteria.

The pool option would indeed provide less certainty to employers. They might desperately need an individual, and try to rely on the system to allow them to recruit that person, but could find that during the allotted time period (e.g. 6 months or perhaps even more) he /she has failed to be selected from the pool because other applicants being sponsored by other employers happen to score more points overall (including, quite possibly, points awarded for factors that are of little importance compared to the employer’s urgent needs). The pool system would lead to a lot of uncertainty and inconsistency, both for sponsors and for individual applicants.

The auction system would mean the ability to recruit migrant labour was not based on a measure of an employer’s “need”, but based on the ability to pay the highest price. Inevitably small companies and those with restricted funding and cashflow would unduly suffer.

Against these two alternatives, the “first come first served” option seems to be fairer. However, we are still opposed to it and are opposed to the very idea of a rigid limit on immigration under Tier 2. Any limit on migration through Tier 2 will inevitably result in unnecessary and harmful restrictions and delays for British businesses, who will be forced to put their urgent staffing needs on hold: while they wait for the next CoS allocation to become available, while they wait to see if and when a candidate will be selected from a pool, or while they wait to discover that they have been unable to obtain their CoS quota through auction.

Tier 1 (General) Limit Mechanism

Consultation content includes the following:

  • A choice between a “first come first served” option and a New Zealand style “pool” system.
  • In the pool system, applications meeting general eligibility criteria will sit in a “pool”, and at regular intervals, a number of the highest scoring applications will be selected to be invited to apply for visas.
  • After a set period (say 6 months) in the pool, applications are removed from it.
  • The UKBA favours this New Zealand-style pool option.

There have been suggestions in the media that applications would be selected from the pool on a quarterly basis.

UKWP Comment:

We agree that based on the information presented, between the two options presented, the pool system appears to be the fairest to all applicants in terms of applications being decided based on merits, rather than on “timing”. However, the pool system is fundamentally still unfair as to a large degree it will equate to a “lottery” for individual applicants. The success or failure of an individual’s application will depend partly on a very “unknown quantity”: the strength of other people’s applications submitted at around the same time as their own. This is hardly the fair and predictable system promised when the Points Based System was introduced (or indeed being promised now by the coalition Government and MAC). Furthermore we argue that the idea of applications being selected from the pool only once every three months would create massive uncertainty and very significant delays for applicants. In the New Zealand system, applications are selected from the pool every two weeks.

Tier 2: Other Proposed Operational Changes

Tier 2 General

Consultation content includes the following:

  • There should be a limit on Tier 2 (General) according to the mechanism described above.
  • There should be moves to help employers to up-skill resident workers and reduce the need for them to recruit migrant workers.
  • One suggestion to help manage /implement the new limit would be to combine the shortage occupations list with the resident labour market test – so that both requirements have to be met before a Certificate of Sponsorship can be issued under Tier 2 (General).
  • The new Government supports of “the principal of sponsorship” under Tier 2 of the Points Based System.
  • Sponsors duties affecting Tier 2 Sponsors could be extended.
  • Sponsors could be required to demonstrate a “practical commitment” to up-skilling British workers.
  • Sponsors could be forced to hold health insurance for their employees.
  • The question of raising the English Language requirement for Tier 2 has also been mentioned.
  • Ministers of Religion and Elite Sports people are to be excluded from the limits.

UKWP Comment

Our view is that combining the shortage occupation list and the resident labour market test is totally unnecessary and it definitely will harm business in the UK. This idea could only ever work if based on a consistently flawless shortage occupations list that would take into account every regional and local trend and situation at every moment in time. This is clearly unrealistic.

The very point behind needing to demonstrate a resident labour market test is supposed to be that employers show that they have tried in practice, and failed, to recruit a suitable resident worker. If an employer has advertised (in a suitable way, to hit the most relevant target audience), and has still been genuinely unable to recruit, this in itself surely demonstrates that there is a need. If the system cannot cover such a situation, then it will not meet the needs of businesses and this will be another step that will make the UK a less attractive place from which to trade.

The Government has stated its ongoing support for the principal of sponsorship for UK organisations employing migrant workers. We suggest that the Government/UKBA focuses on the long promised / threatened matter of enforcement. We believe that the current resident labour market test rules, in combination with the Sponsor’s Duties, actually work perfectly well at preventing unnecessary sponsorship of migrant workers, if only they are adhered to.  We suggest that the Government/UKBA focuses on checking and ensuring the current guidelines are followed. One simple step that could be taken would be to check that advertisements used by employers do indeed meet the basic published requirements.

Basic checks should be made when Certificates of Sponsorship are issued by employers, and clearly it should be noticed if the employer enters clear descriptions of inadequate advertising. We have become aware of situations where employers (not  those receiving advice from the matter on us) have literally informed the Government in this way (using the Sponsorship Management System) that they haven’t conducted a proper recruitment search, yet an individual then goes on to be sponsored under Tier 2. How easy would it be to put an automated system in place that would flag up any situation where the phrase “jobcentre” isn’t used in the relevant field (and for that matter other approved media depending on the code of practice that is selected)?

From our own experience / knowledge, an insufficient amount of compliance activity, so far, has taken place, to allow employers to really understand the importance of their responsibilities regarding the resident labour market search. Compliance activity seems so far to have been misdirected into other, far less important activities, but we suggest that this is what is needed, rather than an effective ban on all non-shortage sponsorship.

Combining the resident labour market test and the shortage occupations list would be incredibly damaging for British businesses, and unworkable. We suggest instead that the Government/UKBA focuses simply on making sure that the perfectly adequate rules regarding the resident labour market search are actually adhered to.

We do not support the ideas regarding expanding the sponsor’s duties. The idea of an employer demonstrating a “practical commitment” sounds like one that would only amount to extra compliance-related paperwork and bureaucracy being placed on employers, with an onerous responsibility to “practically” demonstrate something that often goes without saying or is futile or irrelevant to the positions for which the employer needs to recruit sponsored migrant workers. It seems that the Government may want to ignore the fact that employers don’t endure the cost, hassle and delays of recruiting migrant workers just for the fun of it. The second point regarding health insurance, even more than the first, appears to be more the result of PR / communications advice, than a genuine interest in making the system work more effectively.

We do see an argument (based only on our own anecdotal evidence / experience) for reviewing the minimum English Language requirement (or some of the accepted/approved tests) from its current level in relation to Tier 2 (General).


Consultation content includes the following:

  • The idea has been mentioned that dependants should, in some way, be recognised in relation to the proposed limit.

UKWP Comment

We believe that this is a difficult question and should be considered separately and aside from the wider question of introducing a limit. While we disagree with the limit in general, if dependants are to count towards the limit, then the situation will be potentially made even more unfair. To use a simplistic but logical example, it could lead to a situation where one business is penalised (left unable sponsor somebody they need) because a migrant worker who is going to work for another business has a large family. We expect that with the data that is available on Tier 1 and 2 workers, it must be possible to work out the average number of dependents for each main applicant. This “average” number of dependents can then be factored into the calculations leading to any final limit figure, assuming that the limit is going to be implemented despite stakeholder opposition.

There seems to be little point in the Border Agency having asked as part of the consultation whether stakeholders agree that dependents should be included or recognised within the quota. The UKBA have already instructed the Migration Advisory Committee to recommended figure for a limit to include dependents (see the MAC Consultation doc, 1.5 & 1.6). This clearly and seriously discredits the consultation process. The parameters of the discussion have already been set so tightly as to make the process appear almost meaningless, and with the government asking direct questions they have clearly already decided the answer to, the supposed consultation begins to look like nothing more than an empty public relations exercise.

Intra Company Transfers

Consultation content includes the following:

  • ICTs account for 45% of Tier 2 entry clearance visa applications.
  • The government recognises the importance of the ICT route to businesses, and the free trade treaties that force the UK to keep this route open,
  • The Government claims however that there is a significant risk of longer term transferees drawing on public funds (even though this is prohibited).
  • Perhaps the ICT route could be included within the limit but anyone coming to the UK under the ICT route for less than 12 months could be excepted.

UKWP Comment

Firstly, we believe that the idea that Intra Company Transferees are likely to claim public funds is highly questionable. Most intra-company transferees are highly paid and responsible professionals, and would not do anything to contravene the rules covering their stay in the UK. We do not support ICTs being affected by the limit, especially while this is the only clear argument to include them. In the system as proposed, we hope at least that there would be the option of extending the stay of Transferees who were initially brought in for less than 12 months. In the case of urgent ICTs, we envisage employers bringing people in initially for less than 12 months (to avoid refusals or delays due to the limit) and then being forced to process repeated subsequent extensions, adding cost and bureaucracy for their business. As with the issue of dependents, it looks very much as though this may not be a question for real consultation. The MAC has been instructed already to “work on the basis that” ICT’s are to be included in the limit. It looks very much like a foregone conclusion that they will.

Tier 1: Other Proposed Operational Changes

Tier 1 (General)

Consultation content includes the following:

  • Raising the minimum criteria for qualification under Tier 1 (General), and indeed, the interim measures will see them raising the total points “pass mark” by 5 points to 100 (from 19th July).
  • Also the idea of introducing the following factors into the Tier 1 (General) Assessment:
  • Higher Level English Language Ability
  • Skilled Dependents
  • UK Experience
  • Shortage Skills
  • Health Insurance

UKWP Comment

We believe that the current qualifying threshold is roughly correct in terms of allowing people to enter who are likely to enter highly skilled work and contribute to the economy, based on our own anecdotal experience.  If we had to comment on this further we would have to say that there is perhaps too much emphasis placed on previous earnings rather than provable skills and relevant experience. A good number of individuals with skills that are badly needed in the UK do not qualify currently purely because their previous earnings aren’t high enough. Our response regarding the other points is below.

Higher Level English Language Ability

We support the inclusion of a stringent and demanding English Language requirement for Tier 1 (general), as we believe that adequate English Language skills are important for professional success in the UK and integration into British society. We believe that this should be closely monitored and that potentially alterations may need to be made to this area.

Skilled Dependents

We believe that in some cases, where a dependant has provable skills, perhaps in a shortage area, there may be merit in awarding points in recognition of this, with the valid aim of  encouraging and facilitating the arrival of people with skills that the country genuinely needs.

UK Experience

Points are already awarded under this area. There are valid reasons to continue: rewarding people who have already paid UK University fees to study here or who have contributed to the economy through tax on their UK earnings, and also in recognising the degree to which these people will have already integrated into British society. We think however that the importance / relevance of this factor will vary according to the stringency of the English Language requirements.

Shortage Skills

In our view it makes sense to recognise shortage skills under the Tier 1 (general) route, and take advantage of this category to more effectively relieve skills shortages.

Health Insurance

We believe that the idea of factoring in private health insurance is completely unnecessary and unfair in the context of all of the existing and proposed measures of an applicant’s suitability to enter the UK under this category. Private health insurance is extremely expensive. We are also sure that in anything like its current form, Tier 1 (General) will not be a route used for “health tourism”.

Investors and Entrepreneurs

Consultation content includes the following:

  • These subcategories of Tier 1 of the PBS will probably be excluded from the limit (also the Post Study Work category is due to be reviewed separately at a later date).
  • The UK should do more to encourage eligible individuals overseas to migrate to the UK under these categories.
  • Ideas for this include:
  • changing (lowering) the current required investment amount for the Entrepreneur sub-category,
  • considering staged funding situations,
  • setting different thresholds for individual sectors,
  • extending access to more than one entrepreneur where this is relevant

UKWP Comment

As UKWP generally opposes the limit in tiers 1 and 2, we support any and all sub-categories being exempted from it. In terms of revising the requirements for the Entrepreneurs sub-category, we do think that there is merit in this. It may make sense for applications based on proposed businesses in growth areas to be treated more favourably than those where the market in the UK is saturated. Staged funding should be considered very carefully and these provisions could be subject to abuse.