Earlier this week (7 February 2011) the
United Kingdom Border Agency (UKBA) announced the Migration Advisory Committee’s report which sets out a new shorter list of occupations eligible for migration under Tier 2 of the points-based system.
The Agency’s announcement on its website goes on to say in its review of the immigration system the government
“raised the threshold for Tier 2 visa to graduate level”.
However in case that should give the impression that it’s not possible to get a Tier 2 visa unless you either have a degree or the job you are being sponsored for is only appropriate for graduates - that impression would be incorrect.
The UKBA’s announcement in fact refers to the
Home Secretary Theresa May’s
announcement on November 23 2010. She said that next April a
permanent cap on immigration under Tiers 1 and 2 of the points-based system to a total annual figure not exceeding 21,700 would be implemented. The Home Secretary also said:
“I will restrict tier 2 to graduate-level jobs.”
This was the Home Secretary’s announcement of her intention. That intention has not been implemented in the Immigration Rules yet, and indeed the purpose of the MAC’s report is to indicate how that intention can be realised.
(Only one statement of changes in the Immigration Rules has in fact been laid before Parliament since the announcement last November. The purpose of that statement (HC698) was to include in the Immigration Rules themselves - rather than in the UK's published guidance - the interim limits on immigration under Tiers 1 and 2 which had been announced earlier in the year and thereby to make those limits lawful).
It may be helpful to have a closer look at the current criteria for Tier 2 visas.
Tier 2 is not straightforward. It has four sub categories: General, Intra Company Transfer, Minister of Religion, and Sportsperson. The criteria for eligibility are set out in the Immigration Rules at paragraphs 245ZB to 245ZH, which themselves refer to the Rules’ Appendices A, B and C. The Immigration Rules also make reference to the UKBA’s published Tier 2 of the Points Based System – Policy Guidance (for applicants) and to its Tiers 2 and 5 of the Points Based System – Sponsor Guidance (for Sponsors).
Applicants in each of these sub categories have to score 50 points for Attributes under Appendix A. They can obtain these points via a combination of points scored either for their Sponsorship, Qualifications and Prospective Earnings. (You can add the points scored in each of these columns together to reach the figure of 50 but you can’t add up points for different qualifications - or for different entries under the Sponsorship column).
Unsurprisingly there’s no provision for Tier 2 (Ministers of Religion) and Tier 2 (Sportsperson) Migrants to score points for their qualifications. They get their 50 points just from their Certificates of Sponsorship.
That leaves Tier 2 (General) and Tier 2 (Intra Company Transfer). Applicants for Tier 2 (General) visas include those who have to show that the job for which they are being sponsored to come to the UK can’t be done by any other worker from within the resident labour market, and those who are coming to the UK to fill a job which is listed in the UKBA’s list of shortage occupations, for which no Resident Labour Market Test must be carried out.
As things stand at the moment – there is nothing in the Immigration Rules or in the Guidance which requires Tier 2 (General) applicants either to have a degree or to be sponsored to do a “graduate level” job.
In fact the only part of the current Tier 2 regime which includes the requirement that employees must be employed in “graduate level jobs” is within the Tier 2 (Intra Company Transfer) sub category, and then only for a relatively minor proportion of those people.
Intra Company Transferees are people who the UK-based branch of a company wishes to transfer from its overseas branch to the UK. The sub category is itself subdivided into three classes of Intra Company Transferee:
• Established staff (for employees who have been working for their employer either in the UK with leave to remain as an Intra Company Transferee or overseas for at least 12 months)
• Graduate Trainees (for people who’ve been working for their employer for at least 3 months) and
• Skills Transfer (for a company’s overseas employee either to acquire skills from working in its UK branch or to impart his or her skills to the UK-based workforce).
The mandatory requirement for applicants to be working in graduate level occupations is currently restricted to Graduate Trainees and Skills Transferees. Furthermore applicants in these classes of the Tier 2 (Intra Company Transfer) sub category are only granted leave to enter or remain for a maximum of 12 months and 6 months respectively.
The fact that the current regime imposes this graduate level requirement only upon a small minority of Tier 2 migrants, who don’t get to stay in the UK for very long anyway - highlights the controversial nature of the government’s proposition to extend the requirement throughout Tier 2.
It seems likely that UK employers will face real difficulty in recruiting staff to fill vacancies because the jobs they wish to fill will not have been classified as being at graduate level. The MAC’s list will, it appears, be regarded as an authoritative definition of what comprises such occupations within the UK employment market.
No doubt with this potential for controversy in mind the MAC’s report begins with a careful definition of its terms, as it seeks to establish exactly what a “graduate level job” is.
Answering this question was plainly not easy for the MAC. They began by comparing the varying criteria for qualifications contained in three different analyses, the Qualifications and Credit Framework (QCF), the Framework for Higher Education Qualifications (FHEQ) and the National Qualifications Framework (NQF). The MAC recognises that identifying equivalence for qualifications given the divergence between these three different frameworks is problematic.
Notwithstanding these difficulties - from this comparison the MAC reached a working identifier of qualifications as being above NQF level 4 (or “NQF4+”). It then went on to subject various occupations to a “top down analysis” in which earnings and qualifications deemed to be appropriate to graduate level employment were sought and documented.
Despite this conscientious approach the MAC frankly admits that:
“Neither economic theory nor the academic literature point to a definitive method for identifying occupations skilled to NQF4+ using our top-down indicators”.
This is surely a matter of legitimate concern. If there isn’t a definitive method of identification of “graduate level occupations” it follows that Parliament will be asked (when new Immigration Rules intended to come into force in April 2011 come before it) effectively to endorse a theoretical yardstick which may well not reflect the actual nature of the employment market but nonetheless will affect that market directly.
This area of immigration control – Tier 2 (which it’s worth remembering replaced the Work Permits system which operated for decades) encroaches extensively upon the rights of companies to employ the staff they need and to manage their businesses to their own and their staffs’ advantages.
Some people would say that in common with the Sponsorship regime imposed on educational establishments by Tier 4 of the points-based system the Tier 2 regime extends the boundaries of the proper concerns and duties of the UKBA further than is either necessary or desirable.