Late yesterday afternoon (23 November 2010) the
Home Secretary Theresa May announced that by new Immigration Rules which will come into force in April of 2011 only 21,700 people will be able to come to the UK under
Tiers 1 and 2 of the United Kingdom Border Agency's points based system.
Following lobbying by many in the business community and the Coalition government's Business Minister Vince Cable's expression of his own concerns, applications under the
Tier 2 (Intra-company) transfer route which are used by companies to bring their own employees into the country to do specific jobs, are exempt from this imposed quota. However only those transferees whose salary exceeds £40,000 will be allowed to come to the UK for longer than one year.
The most drastic slash is to the numbers of Tier 1 applicants. The Tier 1 (General) category has been subject to an interim limit since July of this year restricting the numbers of visas which can be issued in any one month. This has been fixed at 600 per month. According to the
Migrant Advisory Committee ("MAC")'s report – in 2009 13,900 people obtained visas to come to the UK in this capacity.
The Home Secretary has announced that Tier 1 will be restricted to entrepreneurs, investors and
"the exceptionally talented". So Tier 1 (General), which the Highly Skilled Migrant Programme (HSMP) replaced is to be reclassified. Exactly who will be regarded as exceptionally talented is not yet clear, but only 1,000 visas per year will be issued.
This alteration of Tier 1 General in favour of an "exceptionally talented" category is explained by the UKBA's concern as to the kinds of jobs which it discovered that one third of people who entered the UK under this category actually ended up doing in the UK.
However – quite what that concern was based upon is unclear. The conditions of a grant of leave under Tier 1 don't require a person to do a particular kind of job. When you apply for further leave to remain you have to show a level of previous earnings in order to get the points you need. There's nothing in the Rules to prevent people from doing several jobs
and being self employed, if they are able to do this, and needless to say the more work you do the more tax you pay. It seems curious that the government should be concerned about the numbers of people complying with the conditions of their leave to remain in the UK and contributing to the UK economy by earning substantially more than the national average salary.
What is clear however is that it is proposed to remove the
Tier 1 (Post-Study Work) subcategory – which currently enables graduates who have studied in the UK to stay on and do skilled or highly skilled work. Leave to remain in this category is only granted for a maximum period of 2 years but it is possible to switch from that leave to remain into Tiers 1 and 2.
Apart from Intra-company transferees (which will remain unlimited) a maximum of 20,700 Tier 2 visas will issued. Again, we know from the MAC's report how many
non-Intra-company transferees visas were issued in 2009 – it was 8,600 (or 13,800 if you add the number of "work permit visas" issued under the old rules). So this maximum figure permits 6,900
more visas to be issued than actually were issued in 2009.
At this stage it would appear – at least so far as Tier 2 is concerned - that a cap which permits more applications to be granted than have been issued anyway is a
misnomer. But the UKBA announcement also says that Tier 2 Migrants will be restricted to jobs "at graduate level" – a further restriction on a route which currently doesn't generate numbers of migrants anywhere near the level at which it is to be capped.
As we reported the MAC emphasised that the Coalition government's declared aim of reducing net annual migration to the "tens of thousands" couldn't be achieved by limiting Tiers 1 and 2 alone. It indicated that the government might have to look at migration by people joining their families in the UK, and by people coming to study.
There is no reference to any review of the first of these suggested areas of focus – perhaps unsurprisingly because of the UK's commitment to upholding human rights, including the right to family life.
However the UKBA has announced that a consultation will be launched before the end of 2010 which will seek views on how the numbers of students coming to the UK can be reduced.
It is to be hoped that the Court of Appeal's observation in
GOO v Secretary of State for the Home Department [2008] EWCA Civ 747 will inform that consultation: