Settlement is the next target in the government's plans to reduce migration to the UK. In its recent consultation paper (June 2011) entitled Employment-related settlement, Tier 5 and Overseas domestic workers the UKBA has indicated its displeasure with the long-standing regime whereby most people granted entry clearance, and then leave to remain in the UK in order to work, as well as their dependants, are entitled to apply for indefinite leave to remain after five years' continuous lawful residence in the UK.
It is pointed out that recent measures taken include the “red carpet” reducing the qualifying period for settlement for those who create jobs, or whose established businesses reap huge profits, and those who invested substantially in the UK, as well as the announcement of the intended closure in April 2012 of the Tier 1 Post Study Work route.
The consultation paper draws upon evidence gathered in the compilation of the UKBA's research document The Migrant Journey for the proposition that a high volume of workers entering the UK is leading to record levels of settlement.
The UKBA acknowledges that this research actually showed that 60% of those admitted to the UK to work had left the UK before they became entitled to apply for settlement (i.e. after five years) and a further 11% were “still in the system”. The proportion of people admitted to the UK to work and who had obtained settlement was actually less than 30% of the research group.
So why is the government concerned?
“Uncontrolled settlement is detrimental to the UK; it does not deliver the best outcome for the economy or for society. Unlimited settlement can place pressure on public services.”
The report also refers to two surveys indicative of public concerns about immigration – and states that the measures proposed in the consultation documents will address those concerns.
The proposals (and a brief summary of the reasons provided for them by the government) are set out below.
- All visas are to be classified as either “temporary” or “permanent”. Only permanent holders of permanent visas will be allowed to apply for settlement in the UK.
The government's expressed view is that this will provide transparency and will ensure that anyone who has a “temporary” visa will know that they must leave the UK at the end of their stay.
- Disentitle Tier 1 (Exceptional Talent) migrants from becoming eligible to apply for settlement after 5 years' continuous lawful residence.
Statement of Changes in the Immigration Rules
HC 863 brought in accelerated routes to settlement for Tier 1 (Entrepreneur) and (Investor) migrants, and also introduced Tier 1 (Exceptional Talent) to replace Tier 1 (General). The government's view is that it:
“..does not believe it is in the UK's interests to allow every skilled migrant to settle. To the contrary, the Government believes that settlement should be a privilege and restricted to those who make the biggest contribution.”
- Require all Tier 1 migrants to leave the UK after 5 years unless they apply for settlement.
The consultation document explains that under current arrangements people don't have to apply for indefinite leave to remain after 5 years, but can instead simply apply for further leave to remain. It is pointed out that people sometimes choose to take the latter course because they can't meet the knowledge of life in the UK criterion for indefinite leave to remain.
The government's view is that the current position should be left as it is. It points out that Tier 1 migrants are more selectively granted entry clearance or leave to remain than before the changes brought in in April of this year by HC 863 and that they now comprise precisely the kinds of “high value” migrants which the UK would wish to attract. Consequently some flexibility within these routes is desirable.
- Require all Tier 2 migrants to leave the UK after 5 years unless they apply for settlement.
The government takes the view that since the purpose of Tier 2 is to fill temporary skills gaps in the UK's labour market. Tier 2 migrants should be required to leave at the end of their 5 years (i.e. initial leave of 3 years, with an extension of 2 years) unless they qualify for indefinite leave to remain. They should not be allowed simply to apply for further leave to remain. (Tier 2 (Intra-company transfer) migrants are not allowed to apply for indefinite leave to remain following the April 2011 changes anyway.)
- (Assuming the last proposal is implemented (and Tier 2 migrants are required to leave the UK after a total of 5 years)) – allow Tier 2 migrants to reapply for entry clearance after an absence from the UK of 12 months.
- Make Tier 2 an exclusively “temporary” route.
The government thinks that this measure will protect the domestic labour market and will encourage skills to be learnt by UK workers, reducing the need for Tier 2 migrants.
The government also flags up the question of whether Tier 2 migrants earning over £150,000, Tier 2 (Minister of religion) migrants and Tier 2 (Sportsperson) migrants, all of whom are exempt from the immigration cap brought in last December, should also be exempt from the proposed classification of Tier 2 as “temporary”.
- Create a new Tier 2 category, which the most exceptional Tier 2 migrants could be allowed to switch into after 3 years in the UK and from which they could apply for settlement.
The government states that it has requested the Migration Advisory Committee (MAC) to indicate the economic criteria by which such Tier 2 migrants can be identified.
- Impose a limit on Tier 2 migrants permitted to switch into the proposed Tier 2 settlement route.
- Impose a maximum limit of 5 years upon Tier 2 migrants and their family members who have been granted entry clearance or leave to remain in this category since April of 2011.
It is the government's view that this limitation can reasonably be placed on any Tier 2 migrant who obtained entry clearance or leave to remain following the imposition of the “cap” on Tier 2.
- Require adult dependants of Tier 2 migrants who are applying to switch into the proposed Tier 2 settlement route to pass an English language test.
The government will only impose this requirement on those Tier 2 migrants who are switching into the settlement route so that other skilled workers are not discouraged from coming to the UK.
- Restrict Tier 5 (Temporary workers) to a maximum period of 12 months' leave in the UK.
At present every category of Tier 5 apart from the charity worker subcategory enables migrants to stay for longer than 12 months. The government's view is that this is contrary to the concept of “temporary” worker.
- Remove Tier 5 (Temporary workers)' entitlement to be joined by their dependants.
- Remove Tier 5 (Temporary workers)' dependants entitlement to work in the UK.
- Require those entering in the “government authorised exchange” subcategory of Tier 5 to have a minimum graduate level skill.
- Drastically limit the Overseas Domestic Worker immigration route by:
i) limiting the leave they may be given to 6 months as a visitor only, or to 12 months if the domestic worker is accompanying a Tier 1 or Tier 2 migrant.
ii) denying Overseas Domestic Workers the option of changing their employers and the right to be joined by their dependants and/or denying their dependants the right to work in the UK.
(The current entitlement to switch employer is intended to protect domestic workers who suffer abuse from their employers. The government takes the view that protection is now available instead from the National Referral Mechanism (NRM), which was formed in 2009.)
iii) prohibiting them from applying for settlement.
It is an understatement to say that these proposed changes are sweeping. If they find their way into the Immigration Rules they will amount to a transformation of the UK's immigration system.
The consultation is open until 9 September 2011.