UK Employers

The UK parliament is examining new proposals for legislation on immigration and asylum: the UK Borders Bill.

A Committee in the House of Commons in the UK parliament starts to examine the proposed legislation on 27 February. The Committee has announced that it will hear evidence from the Home Office, from the Immigration Law Practitioners’ Association, the Immigration Advisory Service, the Trades Union Congress (TUC) and the Transport and General Workers’ Union and from National Car Parks.

Work Permits UK have revised their guidance on when employers or representatives can request a reprint of a work permit. The new guidance took effect on 8 February 2006.

The change affect cases where a work permit has been issued but the person to be employed is refused entry clearance (a visa). In such cases, where the person appeals the refusal and eventually wins and is granted entry clearance, the original work permit may be several months old and may have expired before the person is able to travel.

The new guidance states that employers will have six months from the date of the decision of the Asylum and Immigration Tribunal (AIT) to submit an application for a reprint of a work permit. Requests after six months will only be accepted where the employer can demonstrate a satisfactory reason for the delay. Even where the application is made within the six-month period, further checks may be carried out.

Other circumstances in which a reprint is requested: for example to correct mistakes or when a permit is lost, are not affected by the new guidance.

The quota for the Sectors Based Scheme Food Manufacturing sector, has been set at 3,500 permits and is subdivided between the sectors as follows:
- 600 permits in Fish Processing
- 2,100 in Meat Processing

The UK government has now published the regulations and changes to the immigration rules that set out the restrictions to be imposed on Bulgarian and Romanian nationals wanting to work for an employer in the UK from 1 January 2007, the date on which those countries join the European Union. Forms and guidance have also been published.

The Financial Times newspaper reported criticisms of changes to the Highly Skilled Migrants Programme (HSMP). In its 18 December 2006 article entitled ‘Lawyers attack ‘unfair’ points system’, the newspaper quoted Roger Gherson, the principal of Gherson and Co, who said:

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.

For more information on HSMP, click here.

Applications under the Highly Skilled Migrant Programme (HSMP) are currently suspended and will resume on 4 December 2006. The reason for the suspension is that the Home Office has made significant changes to the requirements under this programme and the suspension period is to allow for the operational transition to be effected.

From 4 December 2006 HSMP applications will again be accepted for consideration by the Home Office, but this will be under the new requirements published on 7 November 2006.

The HSMP remains a points based immigration category and a minimum number of points must be successfully scored as well as demonstrating a high level of ability in English language. Probably the most striking change is that the applicant's work experience will no longer be directly taken into account. Briefly summarised, the changes are as follows:

- The minimum number of points is now 75

- Points for work experience are now no longer given

- Points for partner's qualifications are now no longer given

- Points for achievement in the field are now no longer given

- Points can be claimed for age if aged under 32

- Points can be claimed for ‘UK experience (if earnings or degree are from UK)

- Points will be given only for education, earnings, age and UK experience

- Applicants must prove ability in English language - IELTS band 6 or above

- Provisions for applicants with MBA from Home Office list of 50 eligible programmes still to be awarded 75 points where requirements are satisfied.

In respect of these changes and with regard to all aspects of HSMP applications, the Home Office is very specific in terms of the supporting evidence that is required for a successful application. Based on this fact and on our extensive experience in preparing and submitting HSMP applications our view is that such applications will have to be most diligently prepared and enormous attention to detail in respect of the necessary evidence is now increasingly essential if a positive outcome is to be achieved.

If you are interested in making an HSMP application and are looking for professional representation in this regard please contact Julie-sue Fransman or Sarah Gogan.

For more information on HSMP, click here.

The Home Office has for the fist time given an estimate of the cost of introducing national ID cards - at £5.4 billion!

Until now the government has refused to give an estimate on the cost of the ID cards. However the government's main opposition, the Conservative Party, has said that the cards will cost £20 billion to introduce.

A number of influential business people have met with the Prime Minister, Tony Blair, to try and persuade the government not to place any restrictions on workers from Bulgaria and Romania when they join the European Union next year.

The organisation that represents the UK's universities, Universities UK, has called for the Fresh Talent: Working in Scotland scheme, which allows foreign students who study in Scotland to remain in Scotland after their studies have been completed, to be extended to the rest of the UK.