Working for UK Employers

The Home Office has published the 5th version of its guidance for applicants for the HSMP scheme. These are the notes that accompany the application form. The form itself has not changed. The new version of the guidance is valid from 1 June 2007. 

The changes to the guidance do not come as a complete surprise to law firms such as Gherson and Co., who handle substantial number of HSMP applications.  In many cases, they codify clarification that has been given on individual cases.

Some examples of changes to the guidance are given below; however, this is not a comprehensive survey.

Points for Academic Qualifications

The new guidance spells out that points can only be awarded for one academic qualification and will be awarded in accordance with the level verified by the National Academic Recognition Information Centre (NARIC). The new guidance states that original provisional degree certificates are not acceptable. There is more information on what documentation will be acceptable to the Border and Immigration Agency in cases where a person with a PhD qualification is unable to provide an academic transcript.

Points for Previous Earnings

There is more information about how to evidence previous earnings. The new guidance confirms that there can be gaps in earnings during the 12-month period over which the applicant asks his/her earnings to be considered, as long as the cumulative earnings total meets the required threshold.

The circumstances in which dividend vouchers will be assessed as part of earnings has been clarified, as has the relevant date for exchange rates for currency conversions.

There is a new request for a covering letter when people have worked in more than one employment category during the preceding 12 months.

Details of the acceptable forms of wage slips are provided.

There is a new attempt to grapple with independent contractors and to specify the information they need to provide. It is stated in this guidance that this category may include some ‘IT consultants, freelance journalists, artists, management consultants etc.’

There is also information on supplementary documents that self-employed people may provide to evidence their earnings.

MBA Provision

The blanket statement, after setting out how to evidence an MBA (Masters of Business Administration) qualification, that ‘No other evidence will be accepted’ has been removed.  Instead it is stated that original provisional MBA certificates are not acceptable and there is a procedure for exceptional consideration of MBA applications where the required evidence cannot be produced.

English Language

It is still a requirement that a letter from the university confirming that a degree was taught in English is produced. There is specific guidance for recent graduates awaiting the issue of a certificate but the alternative ways of demonstrating that the degree was taught in English have been defined more strictly than before.

What of the internal Guidance to Caseworkers?

Back in March 2007 the Border and Immigration Agency rejected requests made under Freedom of Information legislation to publish the guidance used by caseworkers in deciding applications under the Highly Skilled Migrants Programme.  It stated that it was reviewing the way published and internal guidance was working and that it intended to publish new guidance at the end of May. It has declined to make available the internal guidance being used in the interim. It stated that it had originally intended to publish this guidance in January or February, but had decided to wait until the current guidance had been revised. 

It is now June and there is still no sign of the internal guidance. The Border and Immigration Agency is under scrutiny from those with an interest in freedom of information provisions and those whose interest lies in seeing whether the new Agency is more efficient than its predecessor, the Immigration and Nationality Directorate. Firms such as Gherson and Co., who are doing significant numbers of HSMP applications, are learning from experience how the Border and Immigration Agency is handling these applications, but the failure to publish the internal guidance arguably leaves individual applicants and firms handling only a small number of applications at a disadvantage. In general, the Home Office makes much of its internal guidance to caseworkers publicly available.

The HSMP programme is the focus of intense scrutiny because it is seen as the forerunner of the points-based immigration system that the UK intends to introduce for all those making applications to work in the UK. This increases the interest in the internal guidance and in understanding how the Home Office handles points-based applications and how it deals with evidence. 

On 15 May 2007, the Home Office launched an Illegal Working Action Plan, co-ordinated through the Border and Immigration Agency (BIA). Introducing the Action Plan in the UK parliament, the Minister of State for Immigration, Liam Byrne MP, stated that it consists of “seven key steps to ensure that we do not just stop illegal journeys to the UK, but the illegal jobs that draw illegal migrants to our country.”

The part of the UK Border and Immigration Agency previously called Work Permits UK and dealing with applications under the Highly Skilled Migrants’ Programme (HSMP) on 18 May 2007 acknowledged that some applicants are having difficulties in making their applications. 

They state that they have revised the information that they provide because some applicants have found it difficult correctly to identify how to categorise previous employment and to provide acceptable evidence to demonstrate previous earnings.

In March, the Border and Immigration Agency acknowledged that is has received a number of requests under UK Freedom of Information laws to publish the internal guidance used by caseworkers deciding applications under the Highly Skilled Migrants Programme (HSMP).  It stated that it originally intended to publish the new guidance in January or February, then decided to delay it pending revision and expected to publish it at the end of May 2007. It has not yet done so.  The changes announced on 18 May to the public information lead many lawyers to doubt that the internal guidance will be made available by the planned deadline of end of May.
 
The changes are another reminder that the Highly Skilled Migrants Programme is not as straightforward as it looks. The evidential requirements are being applied in a way that is exacting and onerous. Firms such as Gherson and Co. who submit significant numbers of HSMP applications are able to gain some idea of the Home Office approach by looking at the progress of the applications in which they are involved, but individuals, and lawyers who do few HSMP applications, find it more difficult to work out what is required from the public information.

The government has stated that it intends the planned Points-based system to be based on objective criteria. Home Office internal guidance often deals with how the Home Office exercise judgement in complex or problematic cases. The changes to the guidance suggest that the Border and Immigration Agency has yet to achieve the right balance in the only points-based part of the current system, the HSMP, between making its evidential requirements  objective and clear, and purporting to refuse applicants on technicalities. 

Meanwhile we understand that the Home Office have not appealed the decision in the case of GJ, in which a person who no longer qualified for the HSMP when the rules were changed in late 2007, won an application to remain in the UK on human rights grounds.

The UK courts and tribunal have recently been highly critical of the way in which Home Office guidance purports to restrict the ambit of the UK’s immigration rules.  In Ahmed Iram Ishtiaq v Secretary of State for the Home Department [2007] EWCA Civ 386, a case on the rules on domestic violence, the UK Court of Appeal did not accept that the Border and Immigration Agency could demand in their instructions to caseworkers that applicants could only prove that they had been subject to domestic violence by producing certain, specific evidence.  The Court of Appeal held that if the UK government wanted to specify that domestic violence could only be proved using specific evidence, then it could have specified that evidence in the immigration rules.  Where an applicant could not produce that evidence then the Home Office caseworker should give the applicant the opportunity to produce other evidence to show that a relationship had broken down because of domestic violence. In DA (Section 3C - meaning and effect) Ghana [2007] UKAIT 00043, a case  on the rights to vary an application pending before the Border and Immigration Agency (BIA) the UK Asylum and Immigration Tribunal (AIT) expressed ‘the gravest doubts’ about whether the terms of the Home Office guidance to caseworkers on particular rights of appeal could be lawful, given the terms of the laws that the guidance purported to explain.  All this suggests that the Points-based system for migration to the UK may not turn out to the tick-box system the UK government desires, and may instead give rise to further litigation.

UK employers may be feeling slightly beleagured. This week the UK Border and Immigration Agency in the UK Home Office has published a consultation on illegal working and the sanctions to be imposed on employers. This week the European Commission unveils proposals for minimum penalties for employers who employ people who do not have permission to work in member States.

On 1 May 2007 the International Graduate Scheme (IGS) replaced the Science and Engineering Graduates Scheme (SEGS).

How will the revised HSMP affect me?

Not at all. It is important to note that once you have entered the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP .