Annual limits on economic migration from April 2011 – Implications of the announcements

Further to our previous news article on the recently announced Annual limits, we would like to clarify UK Work Permits’ understanding and interpretation of the limited information that the UK Border Agency and Home Office have so far published.

Tier 1 of the Points Based System

Tier 1 (General) scheme

The Home Secretary announced in her speech that from April 2011, the Tier 1 (General) route will be closed.

It is unclear at this moment how those currently holding a Tier 1 (General) visa will be affected. The Home Secretary has made no reference to such individuals, and her rhetoric certainly suggests an intention to close the scheme completely. However, in the past (since the HSMP Judicial Review), the UK Border Agency has always implemented transitional arrangements to allow visa holders to extend and reach settlement without having to meet unforeseen requirements. We hope that the UKBA will clarify this issue in the near future.

Applicants who are currently in the UK with a visa that will allow them to switch into the Tier 1 (General) category without leaving the UK, and who qualify under the current criteria should apply as soon as possible, but certainly prior to April 2011. As the rules currently stand, provided an in-country application is submitted (i.e. posted) to the UKBA prior to the change of rules, the application will be decided under the existing rules.

For applicants who are currently outside of the UK, or need to leave the UK in order to switch, applications may be affected by the monthly ‘limit’ on out of country applications. In July 2010, the UKBA introduced a limit on the number of Tier 1 (General) applications that can be approved in any one calendar month. The ‘approval quota’ will not affect the way in which applications are submitted, and if an application is received and the limit has not been met, a visa will be granted as normal. If an eligible application is received and the limit for the month has already been reached, the application will be held until the next month, when a new quota will be available. This ‘roll-over’ will continue until the application falls within the quota and a visa can be granted. It is highly likely that any Tier 1 (General) applications that are held up by the above mentioned ‘limit’ at the end of March 2011 will be refused automatically.

In short, to stand the best chance of being approved prior to the closure of the Tier 1 (General) scheme in April 2011, out of country applications should be submitted as soon as possible.

Tier 1 (Post-Study Work)

The Home Secretary announced that the UK Border Agency will be looking into this category with a view to closing it entirely, on the grounds that 1 in 10 UK Graduates are currently unemployed. The UKBA has also announced that there will be a cap of 1000 visas per year under Tier 1, excluding the Investor and Entrepreneur categories. The Home Secretary also spoke of a new Tier 1 category, entitled ‘People of Exceptional Talent’, with a yearly cap of 1000 visas. This would appear to indicate an inclination to remove the Tier 1 (Post-Study Work) scheme altogether. It is still possible that the UKBA will announce changes or closure of this scheme to be implemented in April 2011, although at the moment this is unclear.

The UK Border Agency has been highly critical of this route, and has treated it with deep suspicion, often claiming that it is abused to allow migrant workers to perform low-skilled jobs. The Home Secretary has not confirmed what percentage of recent domestic UK graduates could be considered to be performing Highly-skilled work; a figure UK Work Permits would have considered relevant to the argument.

Tier 1 (Entrepreneur)

The Home Secretary has announced that this category will be exempt from the annual cap, with the process of applying for this visa being made “quicker and more user-friendly”. The UKBA has not elaborated on this as yet, and it is not clear whether the current requirement that the applicant have access to £200,000 will be relaxed, or whether there will be mere procedural changes to the processing of these applications.

Tier 1 (Investor)

This category will also be exempt from the annual cap, and the Home Secretary has not announced any changes to this scheme.

New Tier 1 category

The Home Secretary announced the creation of a new category for ‘People of Exceptional Talent’, with an annual cap of 1000 visas. In order to qualify under this scheme, applicants will need to have “won international recognition in scientific and cultural fields, or show exceptional promise to be awarded such recognition in the future”. It is likely that applicants will have to obtain an endorsement from a relevant body in order to apply.

This scheme appears to have been constructed purely to appease the scientific and academic communities, some the loudest critics of the proposed immigration cap. UK Work Permits is concerned that the actual ‘mechanics’ of the scheme have not been properly thought out, and suspects that most decisions will be highly subjective and taken by UK Border Agency staff unqualified to make such decisions.

Tier 2 of the Points Based System

Tier 2 (General)

Firstly, and most importantly, the Home Secretary has announced that Tier 2 (General) will be restricted to Graduate level jobs only. The UKBA will publish a list of roles that can be considered ‘Graduate level’ in due course. It is unclear whether this requirement will extend to roles specified on the Shortage Occupation List, although the UKBA’s comment that they will “amend the Shortage Occupation list accordingly” strongly suggests that employers will no longer be able to sponsor workers in roles such as chefs and senior care workers.

Secondly, Tier 2 (General) will be capped at a level of 20,700 for the year from April 2011 until March 2012. Unlike the current interim cap, no Certificates of Sponsorship will be given out to sponsors at the start of the year, and all sponsors will have to request additional CoS via monthly panel meetings. These will be ranked according to the following ‘characteristics’:

• Whether or not the role is on the Shortage Occupation list;
• Whether the role requires higher academic qualifications, presumably Masters and PhDs;
• The salary for the role.

This is not a strict order, and it is likely that the UKBA will award ‘points’ for each of these ‘characteristics’. In this way, it may be possible for a higher salaried position to be deemed ‘more important’ than a role on the Shortage Occupation list.

The following situations will not be capped:

• In Country applications. This will certainly include people who currently hold work permit or Tier 2 visas. We can only presume that this will also include individuals who are in the UK with another type of visa that allows them to switch into Tier 2. The biggest winners from such a change would be sponsors seeking to continue employing individuals with Tier 1 (Post-Study Work) visas;
• Vacancies that attract a salary of more than £150,000 per year.

Lastly, where applicants under the Tier 2 (General) scheme are not from an majority English language speaking country, and have not passed a degree level qualification taught in English, they will now need to pass an English Language Test at a higher level than previously (B1 on the Common European Framework of Reference, rather than A1). An IELTS score of 4.0 is currently deemed to be at level B1.

Tier 2 (Intra-Company Transfers)

The Home Secretary has announced that from April 2011, in order to transfer staff to the UK for more than 12 months (up to a maximum of 5 years), the role must have a salary of more than £40,000 per year. Individuals who are paid at least £24,000 per year will be permitted to come to the UK for up to twelve months. The Graduate Trainee and Skills Transfer sub-categories will remain as they are now, although it is certainly possible that the visa points requirements will be adjusted.

To clarify, Tier 2 (Intra-Company Transfers) will not be covered by the overall annual limit described above, that applies only to Tier 2 (General) applications.

Indefinite Leave to Remain

The Home Secretary has announced an intention to ‘end the link between temporary and permanent migration’. This rhetoric suggests that the UK Border Agency will make fairly significant changes to the ILR rules in the future, but for the moment, only a few minor changes have been announced. Again, these will occur in April 2011.

Firstly, applicants who have unspent convictions will not qualify for Indefinite Leave to Remain. This requirement would appear to extend to dependants.

Secondly, applicants applying for ILR from a Tier 1 (General) or Tier 2 visa will be required to show that their salary has remained at the level for which their current PBS visa was approved.

Lastly, applicants who do not pass a minimum English Language requirement will not be eligible to apply for ILR. We are currently unaware of how this requirement will differ from the current requirement that applicants pass either the Life in the UK Test or an ESOL course.

UK Home Secretary announces important changes to Tier 1 and Tier 2 routes in April 2011

Further to a speech by the Home Secretary, Theresa May, on 23rd November 2010, the UK Government is to introduce the following changes to Tier 1 of the points based system:

• The Tier 1 (General) route will be closed entirely from April 2011;
• A brand new category will be introduced as part of Tier 1. This route will be for individuals with ‘exceptional talent’ i.e. scientists, academics and artists who have achieved international recognition or are likely to do so. There will be an annual cap of 1000 visas for this category;
• There will be no cap on the number of visas granted under the Entrepreneur and Investor categories. Under this category the Government will create a new route for start-up companies which do not meet the current investment threshold;
• The UK Government has announced that they are investigating closing the Tier 1 (Post-Study Work) category. No decision on this has yet been made.

The Government will also introduce the following changes to Tier 2 in April 2011:

• An annual limit of 20,700 Tier 2 (General) out of country applications. This is an increase of 7000 in comparison to last year’s number;
• The Tier 2 (General) category will be limited to graduate level jobs. Although individuals already in the UK holding Tier 2 (General) in jobs below graduate level will be able to extend their permission to stay;
• A salary threshold of £40,000 on Tier 2 (Intra-Company Transfers) where the migrant employee will be here for longer than 12 months.
• Individuals entering the UK on a Tier 2 (Intra-Company Transfer) will be restricted to 5 years’ stay in the UK.

We would advise anyone who is currently outside of the UK and intending to apply under the Tier 1 (General) scheme to apply as soon as possible. Due to the current ‘limit’, out of country applications are subject to delays. Any applications that are pending upon the removal of the Tier 1 (General) scheme are likely to be automatically refused.

We will keep you updated on these changes and further information will be published shortly. If you have any queries, please contact us.

Government cancels plans to introduce ‘earned citizenship’

On 5th November 2010, the Home Secretary, Theresa May, announced that the Government has cancelled plans to implement the concept of ‘Earned Citizenship.’

The plans would have led to a major change in the route to settlement and British Citizenship but were dismissed by the Home Secretary as being “too complicated and bureaucratic”.

At the same time as these announcements, the Home Secretary indicated that the Government is currently drawing up new plans to reduce the number of temporary migrants qualifying for settlement in the UK.

For updates on this story in the coming months, please continue to check our news pages.

UK Border Agency overhauls Interim Limit on granting Certificates of Sponsorship under the Tier 2 (General) scheme

Further to the introduction of an Interim Limit on the number of Certificates of Sponsorship (CoS) Tier 2 Sponsors can issue, the UK Border Agency has announced important changes to the way in which requests for CoS are handled and decided.

The most significant change is that the UK Border Agency has now confirmed that it will grant all applications for CoS where the Certificate is to be used in an extension application. In order to qualify for consideration as an extension, the CoS must be required for an existing migrant worker who:

Is currently employed by the sponsor requesting the CoS; and

Currently holds a Work Permit or Tier 2 (General) visa.

Requests for holders of Tier 1 (Post Study Work) and Tier 1 (General) visas would not be considered as extensions.

Once all requests for CoS for extension applications have been granted each month, the remaining CoS will be split into two categories, Shortage Occupation roles, and non-Shortage Occupation roles. The UK Border Agency has said that the number of CoS available for each of these two categories will be proportionate to the number of requests received in these two categories (in relation to each other). For example, if, in any given month, the UKBA receives 5000 non-Shortage Occupation requests and 1000 Shortage Occupation requests, they would be likely to award the remaining CoS to the two categories in the ration of 5:1.

It should be noted that previously, Shortage Occupation requests were supposedly granted preference over non-Shortage Occupation requests. This is no longer the case, and seemingly the only advantage gained by a Shortage Occupation request is that its salary will only be ‘competing’ against other Shortage Occupation requests (rather than non-Shortage Occupation requests, which would typically have a higher salary).

Once the requests have been sorted into the two categories specified above, the UK Border Agency will rank them (separately in each of the two categories) according to the following criteria:

Salary is at or above £40,000

Salary is between £36,000 and £39,999.99

Salary is between £32,000 and £35,999.99

Salary is between £28,000 and £31,999.99

Salary is between £24,000 and £27,999.99

Salary is between £20,000 and £23,999.99

Salary is less than £20,000 (shortage occupations only)

The decision of whether or not to grant CoS will be made on the basis of the above criteria. Within salary brackets, it is likely that the ‘explanation’ offered by the sponsor (as to why it is so important to sponsor a migrant worker in the particular role) will offer the UKBA further opportunity for differentiation.

The UK Border Agency has also announced that the total number of CoS available during the interim limit (i.e. 19th July 2010 – 31st March 2011) is 18,700. This is equivalent to approximately 2209 per month although the UK Border Agency has previously denied that it will grant a predetermined number each month.

There are still plenty of unanswered questions concerning the Interim Limit. UK Work Permits is currently requesting answers to these questions, so as to provide greater certainty to our clients. We would advise employers looking to sponsor migrants to get in touch with us so that we can offer advice on the viability of such an application.

Industry opposition to the Tier 2 limit continues to increase

Update on the Tier 2 interim limit

The interim limit

The interim limit on Tier 2 (General) visas was introduced on 19^th July 2010 and is intended to continue until 31^st March 2011. The current interim limit was introduced to stop a surge of applications before the permanent cap is introduced in 2011.

For further information on the interim limit, please see our previous news story here.

Reactions

The interim limit has caused strong reactions in many areas, including from UK business leaders, and those representing the rights of the migrant workers  UK Work Permits Ltd has also experienced, first hand, severe difficulties in obtaining Certificates of Sponsorship, and the problems that this can cause potential employers, who are left without essential skilled staff. Some particularly notable reactions are highlighted below: 

Vince Cable

Business secretary Vince Cable, has recently described the immigration limit as “very damaging” to the British economy. He argues that businesses will be forced to move jobs abroad.

He has made his continued opposition to the current limit clear, and is apparently looking for a more flexible solution, which would allow variation in the limit according to the economic climate.

A news story in the Guardian regarding Vince Cable’s comments can be found here.

British Chambers of Commerce

The British Chambers of Commerce have made their concerns regarding the interim limit clear, describing the potential “damage to the economy” that a poorly considered immigration limit could have. They believe that a balance needs to be struck to ensure future economic growth in the UK.

A news story in the Independent regarding the British Chambers of Commerce’s comments can be found here.

General Electric

Mark Elborne, General Electric’s Chief Executive for North Europe, has made public the difficulties that he has encountered due to the interim limit. He has been unable to hire key staff and believes the interim limit has made the UK less attractive for potential investors. International businesses, he states, will see the UK as a “difficult place to do business”, threatening long-term growth.

A news story in the Telegraph regarding General Electric’s opinions of the interim limit can be found here.

CBI

The Confederation of British Industry (CBI), a business organisation which represents 240,000 businesses in the UK, has also spoken harshly of the way in which the interim limit has been put in place.

John Cridland, the Deputy Director-General of the CBI, has spoken of the “serious problems” caused by the interim limit, and points out that the figures used to calculate the level of the limit were “artificially low”. He states that companies have been left without the employees they need for growth, struggling with only “a handful of non-EU specialist staff.”

The CBI’s news release regarding the interim limit can be found here.

JCWI

The Joint Council for the Welfare of Immigrants (JCWI) is a charity which campaigns for justice in immigration matters.

The JCWI has maintained since its introduction that the limit on the number of migrant workers is not in the “economic interests of the UK”. Habib Rahman, chief executive of the JCWI, has called the limit “unnecessary” and “economic suicide”.

In accordance with this view, the JCWI are now fighting for a judicial review of the interim limit. Permission for the judicial review has yet to be granted.

The JCWI consultation response can be found here.

Habib Rahman’s comments on the interim limit can be found here.

What would a Judicial Review achieve?

The aim of a judicial review, if granted, will be to revoke or significantly alter the interim limit, in the favour of UK business and individual migrant workers. The JCWI claim that the interim limit was introduced without proper parliamentary approval, since neither the level of the limit nor details of how it would operate were presented to parliament.

The case is expected to be heard in the coming months if permission is granted for judicial review and hopes remain high that this challenge will be successful. Previous changes to the Points Based System have been recognised as having been made unlawfully and judicial reviews of immigration rules have had positive outcomes in the past.

A news story in the Independent regarding the JCWI’s attempt to bring about a judicial review can be found here.

Home Office response to the threat of a Judicial Review

Damian Green, the immigration minister, has announced that the government will “rigorously defend” any challenge made against the limit, which it introduced in order to decrease immigration by 5%.

A news story on the UK Border Agency website regarding the challenge against the interim limit can be found here.

Summary

There is clearly a significant backlash against the Tier 2 interim limit (and crucially, the rationale behind the current level, and the way the limit is being administered). It is affecting a large number of industries within the UK, and employers of all sizes (including many with significant influence and lobbying power).  The Government / UKBA is under significant pressure, including an attempted Judicial Review.  UKWP predicts that this  pressure is likely to increase until or unless something is done to reduce the negative impact of the limit, or until the long term limit is introduced in Spring of 2011. UKWP will continue to direct resources towards conveying our clients’ requirements to the UKBA, however, our resources are subject to practical limits, and it appears that currently, the Government / UKBA are taking an extremely rigid approach, regardless of very significant resistance from many sources.

There is certain to be more news on this subject in the near future. UKWP will post more nformation on this topic as soon as there are any significant developments.

Tier 2 interim limit in place until 31st March 2011

Vital information on the interim limit affecting Tier 2 of the Points Based System

In an attempt to reduce applications for immigration under Tier 2 by 5%, the Government has introduced an interim limit on the number of Certificates of Sponsorship (CoS) it will allow employers to issue.  This temporary limit will apply to Tier 2 (General) from 19^th July 2010 to 31^st March 2011. Most sponsors have now seen their CoS quota reduced or removed (reduced to zero).

Additional certificates for existing sponsors will only be issued at the discretion of a panel of UK Border Agency officials and due only to exceptional circumstances. Employers granted a new Sponsor’s Licence during the interim limit, will also have to apply “exceptionally” to receive any Tier 2 (General) allowance at all.

It is important to note that this change only applies to Certificates of Sponsorship issued under the Tier 2 (General) arrangements. It does not apply to the Tier 2 (Intra-Company Transfer) arrangements.

What has happened to your quota of Certificates of Sponsorship?

From the 19^th July, all employers’ existing quotas will be wiped, regardless of their existing quota or how long they have had this quota. The UKBA is emailing all sponsors with their new quotas, which appear to have been calculated automatically.

How your new quota of CoS has been calculated

The interim limit has been calculated based on the CoS usage of each employer for the same period 12 months earlier: from 19^th July 2009 to 31 March 2010. The UK Border Agency has then applied a reduction to each employer that used 2 or more CoS during that period. If an employer issued one CoS during this period, they are likely to be issued with a quota of one CoS for the period of the interim limit. Likewise, employers who did not sponsor anyone under the Tier 2 (General) arrangements last year will be awarded a quota of zero CoS for the new interim period. Employers who did not have a licence before April 2010 will automatically receive an allocation of zero.

It is important to note that the UKBA is calculating the number of CoS to issue by looking at the exact number of CoS issued during the same period last year. This does not take into account the quota that an employer was issued with, but it does count CoS that were issued incorrectly and then withdrawn or never used.

This method of calculation was not announced until Monday 19^th July and runs contrary to general expectations as to how the system would work. It seems both illogical and unfair to issue Certificates to employers on the basis of how many people they sponsored during the same short period last year during a national recession. Likewise, this new system potentially rewards those employers who issued Certificates incorrectly and in contradiction to the UKBA rules, by issuing them with a higher number this year.

The UK Border Agency has given a considerable number of sponsors an allocation of zero. Such employers will not be allowed to issue new certificates or extensions to existing employees until they make an ‘Exceptional Circumstance’ request (and this is approved).

If we have been issued with less CoS than we need, what can we do?

In order to make a request for additional CoS, sponsors must hold an ‘A’ Rated Licence and must account for each CoS that they have already issued (and intend to issue) during the period of the interim limit. Employers must then complete a form detailing the exceptional circumstances under which they need to sponsor an individual. This form asks for detailed information and it is clear that employers cannot make requests ‘speculatively’. Requests must be for a specific role and salary (and in the case of extensions, the exact person), and the UKBA will enforce the use of the CoS for this role (or individual). Requests should be made no more than 60 days before the intended start date of the role.

How will our request be dealt with?

Contrary to the previous system for requesting additional CoS, the new system has moved more in the direction of an employer having to persuade the UK Border Agency that they have the most pressing need. All decisions will be at the discretion of the UK Border Agency, rather than based on a clear set of objective criteria, and as a consequence, all such requests will have to include a set of arguments to influence the decision of the UKBA panel. For this purpose, many sponsors are likely to benefit from professional assistance in successfully requesting additional Certificates.

A panel of UKBA managers will meet on the first working day of each month to consider all requests received by them by the 24^th of the previous month. They will then consider these requests in the following order:

1. A Work Permit or Tier 2 (General) extension for an existing sponsor;
2. A Work Permit or Tier 2 (General) extension for a new sponsor;
3. A new shortage occupation post for an existing sponsor;
4. A new shortage occupation post for a new sponsor;
5. A non-shortage occupation post for an existing sponsor;
6. A non-shortage occupation post for an existing sponsor.

The UKBA has stated that in the majority of cases, requests will be unsuccessful.

This new system is going to dramatically increase the amount of administration and time involved in sponsoring a migrant worker under the Tier 2 (General) arrangements, for both the employer and UK Work Permits Ltd. In the majority of cases, we will need to put forwards a thorough and well-reasoned argument as to why the employer needs to sponsor (or even extend a visa for) each specific individual.

We will shortly be contacting our employer clients individually to request information specific to their quota and their needs over the coming months. As a general rule, it is absolutely imperative that employers notify UK Work Permits as soon as possible of their intention to sponsor a migrant worker under the Tier 2 (General) arrangements, including extensions of existing work permits or Tier 2 visas.

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.

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:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/consultations/limits-on-non-eu-migration/

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).

Dependants

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 19^th 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.

From Monday 19th July 2010, the UK Border Agency will be introducing two major changes to the way Tier 1 (General) applications are processed.

Interim Limit

From the 19th July until a permanent limit is introduced in April 2011 (a consultation as to the details of this limit is currently taking place) the UK Border Agency has announced that it will place a limit on the number of Tier 1 (General) applications submitted each month. It is important to note that the UKBA has placed this limit on the number of applications submitted, rather than the number of applications approved. The limit will only apply to those applications submitted from outside of the UK. Applications submitted from within the UK (either switching from another category or extending from HSMP or Tier 1 (General)) will not be included within the scope of this limit.

Applications within the scope of this limit will be processed on a first come, first served basis. Any applications over and above the monthly limit will be held in a queue until the next month.

The UK Border Agency has not yet announced what the monthly limit will be. We will confirm this ‘quota’ as when this information is released by the UKBA.

Change in qualifying criteria

From the 19th July, applicants under the Tier 1 (General) scheme will need to gain an extra 5 points (100 instead of 95) in order to qualify for the scheme. This change will apply to all applicants (including in-country applications) except those who are extending from a highly skilled category (i.e. HSMP or Tier 1 (General)). The UK Border Agency has not yet announced whether they will be changing the points allocation for various attributes or even where this extra 5 points must be gained. This being said, it is likely that it will simply be a case of applicants needing to score an extra 5 points in the main ‘attributes’ section, i.e. from the ‘Age’, ‘Qualifications’, ‘Previous Earnings’ and ‘UK Experience’ sections.

We will confirm the details regarding the implementation of this change as soon as this information is released by the UK Border Agency.

We would advise all individuals interested in making an application under the Tier 1 (General) scheme over the coming months to contact UK Work Permits immediately with a view to submitting the application as soon as possible, and if viable, before the 19th July 2010.

New arrangements for ‘Earned Citizenship’

As planning for the implementation of ‘earned citizenship’ continues, transitional arrangements have been approved for migrants who will be on the journey to British Citizenship when the scheme rolls out in July 2011. Below is a summary of the agreements:

A migrant who has already been granted Indefinite Leave to Remain before or on the date when ‘earned citizenship’ is introduced will not be required to pay, or apply, to be a considered a ‘permanent resident’. This will occur automatically. The individual will be able to apply for British citizenship under the current rules if they apply within the first two years of the scheme’s commencement.

A migrant who applies for Indefinite Leave to Remain before the date when ‘earned citizenship’ is introduced, and has their application subsequently approved will be able to apply for British citizenship under the current rules within the first two years of the scheme’s roll out.

Migrants on the Highly Skilled Migrant Programme (HSMP) should not be affected by the new scheme. Individuals will be able to apply for and be granted Indefinite Leave to Remain under the Immigration Rules that were in place at the time of their HSMP application.

Originally, the ‘earned citizenship’ scheme was due to be implemented at the beginning of 2011. The UKBA has now postponed this and earned citizenship will be introduced in July 2011. Consequently, a greater number of migrants already in the UK will be able to adjust to the new system and should have time to apply for ILR under the current rules.