What happened with the Tier 2 immigration cap?

by Laurie Anstis on October 5, 2011

At the end of last year, employers and immigration lawyers were making a big fuss about the government’s plans to cap the number of skilled migrants from outside the EEA who could work in the UK.

The plans were for the number of tier 2 (general) permissions to be capped at 20,700 a year.  Tier 2 is the equivalent under the points-based immigration system of the former “work permits”, and is the standard way of getting permission for a non-EEA national to work in the UK.

Many employers were concerned about the cap, and fearful that they would not be able to bring into the UK the skilled workers that they need for their businesses. The government set up a committee to vet applications for these “restricted” certificates of sponsorship, which was to meet monthly to decide on which employers had made out the best case to bring workers in under Tier 2.

Yet as the graph below shows, the cap has never been met. Each month there have been fewer valid applications than the number of certificates of sponsorship available. The graph plots the monthly cumulative number of restricted certificates of sponsorship available and the cumulative number granted. The original figures are available here.

These figures suggest that the cap is meaningless – there are not enough applications being made to reach the cap. Why is that, when employers were so concerned about the cap? Here are some possible reasons:

1. Restriction to graduate roles

At the same time as introducing the cap, the criteria for a Tier 2 (general) application was tightened. Tier 2 (general) applications can now only be made in respect of graduate occupations. In practice, most of the roles that I dealt with in the past would meet that criteria, but it is notable from the register of sponsors how many sponsors are restaurants, who previously might have been able to bring in specialist chefs but who are likely now to fall foul of the restriction to graduate occupations.

2. Restriction to those scoring 32 or more points

The restricted certificates of sponsorship are only be available for individuals who score 32 or more under the points-based system. Typically this will require completion of the resident labour market test and a job paying at least £20,000 a year.

3. An increasingly technical approach to applications

The UK Border Agency itself has, in my experience, become more inclined to reject applications on technical grounds if the application is not completed 100% within the rules. Perhaps as a result of heavy job losses, the UKBA seem now to be dealing with applications purely on the basis of a check list, without any discretion for deserving causes that don’t quite fit within the necessary categories, or where the form has not quite been filled in in the right way.

4. Employers got applications in early

Although there were interim restrictions on applications prior to the introduction of the cap, savvy employers may well have tried to get any essential overseas workers into the UK before the cap came into force.

5. Intra-company transfers and other unrestricted routes

Intra-company transfers (that is, transfers from group companies overseas) and applications in respect of workers earning over £150,000 a year are not subject to the cap. They can be dealt with via “unrestricted” certificates of sponsorship, and it will be interesting to see if the use of these routes has increased when the government publishes its next immigration statistics.

6. The economic climate

When there are fewer jobs to go round generally, typically there will be more European employees to fill the jobs and less need for businesses to look outside the EEA for workers.

For now, at least, it seems that the cap on Tier 2 (general) applications is not needed. It remains to be seen whether this will be seen as vindication of the original approach or an unnecessary restriction on employers and overseas workers.

One comment

[…] (now Tier 2 (general)) has been made subject to a cap of 20,700 applications per year, although the number of applications is far below the level of the cap. The old highly-skilled migrant scheme (now Tier 1) has been effectively shut, with its replacement […]

by The future of business immigration law | Work/Life/Law on 2 February 2012 at 8:34 pm. #