Changes to the Highly-Skilled Migrant Programme - the longer-term view for employers and highly-skilled migrants.
16 November 2006
On 7 November 2006 changes to the rules for the Highly Skilled Migrant Programme (HSMP) were announced, with immediate effect. The scheme was suspended until 4 December 2006, after which time the new rules will apply. New applicants must satisfy the new criteria. So must people already in the UK on the HSMP scheme need who apply for an extension of their stay in the UK as a highly-skilled migrant. Those applying for an extension of stay who do not satisfy the new criteria are given a time-limited chance to move into work-permit employment, i.e. working for one particular employer. Employers will be allowed to apply for work permits for people who have worked for them for long enough as highly-skilled migrants, without having to prove that no UK or European Union-based person can do the job (the Resident Labour Market test).
The Home Office stated in their announcement: 'these changes will inform the decisions the Government will take towards establishing the new five-tiered Points Based System for all migration routes to the UK to work or study by April 2009', thus sounding a warning that the scheme may change again, perhaps many times, until the government are satisfied that they have got it right. What are the implications of this uncertainty for would-be highly-skilled migrants and those who wish to employ them?
The government's medium-term goal is a system covering all applications to work in the UK that is based on scoring points against criteria that are as easy to verify and as objective as possible. They plan to have five categories or 'tiers', each with their own criteria and designed for different types of worker.
The HSMP is the only 'points-based part' of the current system. The changes to the scheme announced on 7 November mean that it will closely resemble the proposed "Tier 1" of the Points-based system, expected to be the first part of the Points Based system to be introduced. Gone are any points for work experience; points are awarded for academic qualifications, previous earnings, UK experience, and under-32s will get top-up points based on age. There is a mandatory English language requirement. The changes thus appear to be a trial run for the Points Based system; a chance for the government to check that it has the criteria right before starting to implement that system. If the government decides that it does not have the criteria right, for example if it finds that the new criteria exclude people whom the UK wants to attract, or include too many people who are not bringing unique skills but competing with resident workers for jobs, the criteria are likely to be changed again...and again. The result? People admitted to the UK as highly-skilled migrants may find that when they come to apply to extend their stay, they no longer qualify in that category.
HSMP, and Tier 1 of the Points system, are unique amongst the immigration categories whereby a person comes to work for an employer, rather than for themselves, because the worker is free to change employers. Highly-skilled migrants will therefore be asking 'Which job will put me in the safest position if the criteria change again?' Employers will be asking "How do I retain my highly skilled migrant staff in this changing environment?". Some first thoughts:
- Highly-skilled migrants will be looking for high salaries, because points are linked to salary
- However, points are also linked to academic qualifications, which may make support for studies as attractive, and in some cases more attractive, than a small pay rise.
- If the approach taken on 7 November is repeated when there are future changes, then the time the employee has worked for the employer will be relevant to whether a work-permit can be obtained for an employee who no longer qualifies as a highly-skilled migrant. Loyalty and commitment on both sides appear to be rewarded. Employees who feel confident that their employers will make a work permit application for them if the need arises, are likely to be tempted to stick with that employer.
What are the chances of future changes to the criteria? This is difficult to predict, but some first thoughts are:
- The lack of points for previous experience, and the apparent impossibility of scoring enough points to qualify as an HSMP without a degree may result in world leaders in their field, for example in the arts or sport, being unable to qualify under the HSMP. If the UK is failing to attract the people it wants, the government may wish to adjust the scheme.
- If very large numbers of people qualify under the scheme and are felt to be competing with, rather than complementing, the UK and European Union workforce, the government may wish to make it harder to qualify under the scheme, or even consider imposing a limit upon the numbers who can qualify
- There is likely to be a discussion as to whether the points top-up for younger people, in its current form, is justifiable or desirable.
- The intention is that applications under the Points Based System will be processed by Entry Clearance Officers at British Embassies and Consulates abroad, whereas HSMP applications are processed by Work Permits UK, which has specialised in this type of application for a long time. If the government decides to introduce a more complex scheme, or more complex evidential requirements, it would seem likely that it will want to try these out while the experts are still dealing with the applications.
Alison Harvey, Gherson and Co.
