Immigration Limit Consultation Response

UK Work Permits Ltd is sharing with its clients and users of this website, the responses it has given to each of the questions in the current consultation regarding limits on tiers 1 and 2 of the Points Based System.

The Consultation can be found here. We suggest that all clients, particularly employers, submit their views. We have completed the online form as there were errors on the PDF response form.

The consultation questions, and our answers, are below:

Question 1: Do you agree that operating a pool for highly skilled migrants on the basis described above will be the fairest and most effective approach?

Answer:           No.

Question 2: If you have answered yes or no to the previous question, please give your reason(s) in the box below.

Answer:           We would agree that based only on the two options presented in the consultation, as they were described, the pool system appears to be the fairer in terms of applications being decided more 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 (as well as the speed at which it is approved) 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). As an aside, it is clear that if applications were only selected from the pool only once every three months this would create massive uncertainty and very significant delays for applicants. In the New Zealand system, applications are selected from the pool every two weeks.

3. Do you agree that operating a first-come first-served system for skilled migrants available to individual sponsor employers will be the fairest and most effective approach? Please select one answer only.

Answer:           No.

4. If you have answered yes or no to the previous question, please give your reason(s) in the box below.

Answer:           We are not in favour of this. Based only on the small number of problematic options that have been presented, the “first come first served” choice seems the fairest: it could still allow for decisions to be made according to consistent and predictable qualifying criteria.

Against only the two alternatives mentioned, the “first come first served” option seems to be the least unfair. However, we are still opposed to it and we 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, whichever one of the 3 options is implemented: for example, 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 an auction.

5. Do you believe that where a quarterly quota is filled applications that have not yet been considered should be rolled over to the following release?

Answer:           Don’t know.

6. If you have answered yes or no to the previous question, please give your reason(s):

Answer:           Although we have answered “don’t know” we need to make further comment. We’ve answered “don’t know” because we believe the question is meaningless at this stage. We believe that this question relates to tier 2, although the question itself doesn’t make this clear. This question concerns a detail that probably can’t be sensibly decided on until more fundamental issues have been decided on. For example, the level at which the Tier 2 limit is going to be set, and the level to which this limit is likely to fall short of demand. If the limit will significantly and regularly fall short of demand, and if applications are allowed to roll over repeatedly, then this could create a huge, impenetrable backlog. However, if the limit and demand are more closely matched, employers should not have to apply again following a one-off month of high demand. There are more pieces of information that would be needed in order for this question to be answered. For example, would the quota be relevant at the stage of issuing CoS’s, or when visa applications are being considered? Would the limit be applied to initially “available” CoS’s, or CoS’s actually used? If the CoS quota was made available to an employer at the start of a period, would it be guaranteed to be available for the whole period, or could it disappear if demand was high from other employers? If the quota would be relevant at the stage of issuing a CoS, would employers would be able to see at the time of trying to issue a CoS that none were available within their quota? If so, there would probably be no need to roll over anything – the employer would be able to see at the time of trying to issue a CoS that they should just try again at the start of the next period. The whole question of carrying over a CoS request will surely depend on some sort of system where employers are able to apply for a CoS to be issued “pending quota availability”. No such system has been discussed. There are countless unanswered questions. The question asked here in the consultation cannot be sensibly answered with a yes or a no based on the information available currently. It is a non-question.

7. Do you think the Government should consider raising the minimum criteria for qualification under Tier 1 of the Points Based System?

Answer:           No.

8.  If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We believe that the current qualifying threshold is roughly correct in terms of allowing people to enter who are likely to engage in 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. The amount of previous earnings, in the current system, seems to be given unduly high importance.

9. Do you think the Government should provide for additional points to be scored for the following factors?

Higher level English Language Ability?   (Don’t know.)

Skilled dependents?                                         (Yes.)

UK experience?                                                 (Yes.)

Shortage skills?                                                  (Yes.)

Health insurance?                                            (No.)

10. Do you think that there are any other factors that should be recognised through the Points Based System?

Answer:           We don’t have any additional factors to suggest, but we would like to comment on the ideas raised in the consultation:

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 would 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”.

11. Do you agree that tier 1 Investors should be excluded from the annual limit?

Answer:           Yes.

12. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We oppose the introduction of a rigid limit for tiers 1 and 2, and so we welcome any and all relevant subcategories being exempt.

13. Do you agree that Tier 1 Entrepreneurs should be excluded from the annual limit?

Answer:           Yes.

14. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We oppose the introduction of a rigid limit for tiers 1 and 2, and so we welcome any and all relevant subcategories being exempt.

15. How could the UK make itself more attractive to investors and entrepreneurs who have the most to offer in terms of driving economic growth?

Answer:           As well as making the rules and management of these subcategories more flexible, a significant amount of benefit could be achieved through the active overseas promotion of the UK as being a good place to do business / base a business. The effect of any such message however will be significantly weakened in many cases by the very limits on skilled migration being discussed here. Investments in education and infrastructure are other obvious suggestions. In response to the suggestions for revising the requirements for the Entrepreneurs sub-category, we do think that there is probably some 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. The consideration of applicants who have secured staged funding should be considered very carefully as these provisions could be subject to abuse.

16. Do you agree that the Intra Company Transfer route should be included within annual limits?

Answer:           No.

17. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           Firstly, we believe that the claim (as put forward in the consultation document) 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 would 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 to costs 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 to be a foregone conclusion that they will.

18. Do you agree that dependents should be included towards the limit?

Answer:           No.

19. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           We disagree with the limit itself affecting individual applicants, but 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 this question as part of the consultation. The UKBA have already instructed the Migration Advisory Committee to recommended figure for a limit to include dependents. 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.

20. Do you believe that the Shortage Occupation and Resident Labour Market Test route should be merged in this way (as described in the consultation document)?

Answer:           No.

21. What, if any, do you think would be the advantages of merging the Shortage Occupation and Resident Labour Market test routes?

Answer:           We cannot say that there would be any advantages, unless harmful restrictions being placed on businesses are what the Government is seeking.

22. What, if any, do you think would be the disadvantages or merging the Shortage Occupation and Resident Labour Market test routes?

Answer:           Our view is that combining the shortage occupation list and the resident labour market test is totally unnecessary and that it will definitely harm business in the UK. This idea could only ever begin to 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 – and that 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 for the employer to look further afield. 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 base a business.

The Government has stated its ongoing support for the principle 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” hasn’t been 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.

23. When do you think this change should be implemented?

Answer:           More than 12 months.

24. What consideration should be given to advertising requirements?

Answer:           Firstly we should clarify that the above selection was only made in the absence of the option “not in the foreseeable future”. We assume that this question  (24) should be taken just as it reads (not assuming that advertising would need to be carried out in addition to having a position match a recognised shortage occupation). We believe, as stated previously, that the advertising requirements are basically adequate. One possible area for improvement (as well as the issue of compliance mentioned above) may be that the guidance does not make clear enough what situations do and do not merit an employer sponsoring a migrant worker.

25. Do you believe that the Government should extend sponsor responsibilities in these ways (as described in the consultation document)?

Answer:           No.

26. If you have answered yes or no to the previous question, please give your reason(s)

Answer:           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. We have given our views earlier about the genuine relevance of a private health insurance requirement for these skilled tiers.

27. Do you think that the Government should raise the English Language requirement for Tier 2?

Answer:           Yes

28. If you think that the Government should raise the English language requirement for Tier 2, to what level do you think it should be raised?

Answer:           Intermediate

29. If a supply of migrant workers is no longer readily available, what action will you take to train and source labour from the domestic market?

Answer:           Given the significant costs, hassle and responsibility already involved in recruiting migrant workers, it already makes much more sense for UK businesses to source and train staff from the domestic market wherever possible. UK Employers will surely continue to source suitable resident workers wherever possible, without the need for any heavy handed and harmful cap or limit on skilled migration.